25 Leibniz’s Elementa Iuris Civilis and the Private Law of his Time

KLAUS LUIG (COLOGNE)

INTRODUCTION

Leibniz and private law

Leibniz’s moral philosophy and political theory have always been studied with great care in the English-speaking world.

Some of my earlier studies have been devoted to Leibniz’s view of the ethical foundations of private law and to the technical problems of his proposals for codification.^[641] The Elementa iuris civilis again show that Leibniz wants to bal­ance rights and duties. The presumption of freedom, which is significant for a system of private law, becomes obvious through Leibniz’s arrangement, which makes freedom its foundation and enumerates the exceptions.^[642] Other than some remarks I made in an earlier article,^[643] a study specially dedicated to Leibniz’s Elementa iuris civilis is, however, still lacking. The legal historian will find inter­esting not only Leibniz’s particular solutions to the problems of co-operation and conflict between individuals in the Elementa, but also the fundamental notions, the method of reasoning and even the system of expounding the mate­rial in the work.

“Jurisprudentia Thetica”

As already mentioned, the essential precondition for a codification was the elab­oration of the elements in Leibniz’s plan for the reformation of the law. One can therefore assume that the text of the Elementa is formulated in much the same way as the final draft of the codification would have been phrased.

System

To build a system means to assemble, according to predefined criteria, things which belong together. The difficulty is that some of the criteria necessary for a system of private law overlap. Different points of view can be discerned. Thus, a human being may be male, female, adult, minor, married, unmarried, etc. Leibniz had therefore to find answers to questions such as: should all minors be put into the same chapter, irrespective of their age, but according to their sex? Or, would it be better to classify all minors according to their age but irrespec­tive of their sex? Leibniz did not resolve this problem satisfactorily.

The Elementa iuris civilis has a rather difficult systematic structure that is developed on three different levels. The structure is, however, of considerable interest in revealing the fundamental notions of Leibniz’s theory of private law. Though the master plan is mainly in conformity with the scheme expounded in the Nova Methodus,⁶ it still includes some important changes.

The main elements of the system are the concepts of rights and duties. Following the plan of Justinian’s Institutes, Leibniz starts with the individual (persona) as the subject of rights and duties. Justinian’s second basic notion, that of res, is also apparent in Leibniz’s system. This concept is divided into property rights (ius reale) and obligations. The former consist of rights imme­diately concerning a—normally corporeal—object and the second of rights directed against a person, sometimes also involving a res (ius in personam ad rem) and sometimes not.

⁴ Originally Leibniz said “Jurisprudentia didactica”. Later he replaced “Didactica” with “thet- ica”; cf. the later additions to the Nova Methodus in G W Leibniz, Samliche Schriften und Briefe (herausgegeben von der Akademie der Wissenschaften der DDR, Sechste Reihe, Philosophische Schriften), Vol. 1, (2nd edn, Berlin, 1990) (hereafter Ak. Edit.) VI 1, ad Pars II, §§ 3, 6, 27, 28.

⁵ Nova Methodus, Pars II §§ 2, 22. As to the abstraction of those rules cf. Pars II § 24.

⁶ cf. the remarks of the editor in Ak. Edit. VI 2, supra n.4, 35; Nova Methodus, Pars 11 §§ 14, 21, Ak. Edit. VI 1, 300. delictual liability, the principle of avoiding damage (non nocere). Therefore, despite the striking similarities, the text as a whole cannot be called an institu­tional scheme.^[644]

The topic “person” occupies the first to fifth chapters. The second part deals with the legally relevant acts (actus) of persons concerning rights and duties. Chapter 6 is on valid and invalid acts, and chapter 7 on additions to acts (con­dition, term, modality). The third part (chapters 8 and 9) is dedicated to the objects of human actions, that is, rights and duties. Chapter 10 marks the begin­ning of a new part listing grounds (causae) of the different rights and duties. The last two chapters (15 and 16) treat the extinction of rights and duties.

At the secondary level the part of the text dealing with “persons” has the fol­lowing chapter headings: 1. Persons regarded as beings (as entities) entitled to rights and duties; 2. Cases in which one person represents another; 3. Succession of one person to another by will; 4. Intestate succession; and 5. Joint rights of a number of persons (concursus plurium personarum ad idem).

The list of grounds (causae) starts in chapter 10. First, there are grounds for rights that are based on the general observation of the duty to avoid causing harm; this contains the principles of contractual and extra-contractual liability, in particular, intention, different grades of negligence and accidental loss.

The Deduction of Single Rules

After describing the arrangement of the different branches of private law, it is necessary to discuss how coherent was the presentation of all the individual rules and doctrines within the individual chapters, and the method of reasoning from rule to rule. As far as this is concerned, Leibniz is opposed to the inconsis­tent application of a principle in some of the chapters.^[645] In both cases he aims at putting similar cases together in a sort of enumerative method. But, by modern standards of systematic reasoning and deductive presentation of legal material, there is a definite lack of consistency. Of this I can only give a few examples: amongst the rules combined under the heading “Some person representing another person” or “One person is taken for another” Leibniz cites, side by side, the rules according to which a legitimated child is equal to a legitimate child,^[646] a slave (in cases of acquisition) stands for his master,^[647] the heir represents the deceased^[648] and the assignee the assignor.^[649]

Sources and Materials

The sources for the rules formulated by Leibniz are primarily those of the civil law (ius commune) of his time.

Leibniz drafted the Elements of Civil Law in the course of the years 1670-72, after some preparatory work in the autumn of 1667.^[651] These were never printed; I am using here the text of the Akademie-Edition.^[652]

I will go on to give a paraphrase of the parts of the Elements that are of most interest. In order to make quite clear Leibniz’s concept and to help readers find their own way to the original text I will follow as far as possible (and as is use­ful) the numbering of the chapters, and even the arrangement of the single rules in that edition.

ELEMENTA IURIS CIVILIS

Definition of persons

A person - or an object of moral quality, that is, capable of rights and duties - is a being that has reason and will (volition). (This is so even for the mentally ill, those asleep, embryos, a collective body of persons, and deceased people.) Excluded, however, from this definition are minors under twelve, fourteen or twenty-five years of age respectively, women in business matters (referring to the SC Vellaeanum), sons under the power of their father, clerics, enemies, banned persons, inhabitants of a state not offering equal rights to the citizens of the state in question, handicapped persons, and women in matters of feudal law.

One person represents another or is treated as equivalent (identical)

With regard to this, Leibniz quotes the following examples. The legitimated and the adopted child are equal to the legitimate child, except in matters of nobility. The child legitimated by marriage is equal to the legitimate child in every respect. Treated as one person are the slave and his master, and also per­sons in paternal power and their father in cases of acquisition. The captain of a ship, the innkeeper and the owner of a stable are treated as equivalent to the administrator (exercitor). The same holds true for the mandator and his man­datary or delegate, the assignor and the assignee (although cases where the assignee is a potentior or where the sum paid for the assigned right is of lesser value than the right itself are excluded).

Representation does not take place in matters of fact rather than of law: for example, with possession, in a company, when there are rights which are bound to the person (personalissima), or in the making of a will. There is no represen­tation in a usufruct, or a contract under a condition, nor too in the case of inher­ited rights before the day of knowledge of the inheritance, in the capacity to make a will, or in raising an action of injury (actio iniuriarum).

Succession to a deceased by those named in the testament

Valid wills are those made by soldiers, persons in danger of death, and parents benefiting their children without prejudice. Also valid are testaments for chari­table purposes (ad pias causas), those made by rural people, or in times of war or plague, or in the presence of five witnesses. Testaments made in court in the presence of the judge, or personnel of the court authorized by the judge, are also valid, as are testaments made in the form of a codicil as far as legacies and trusts (fideicommissa) are concerned, in the form of a solemn testament with seven witnesses.

The will is not valid if the parents or children of the testator are not named. If they are disinherited the reason for disinheritance must be expressed. A father may make a testament on behalf of a minor or a mentally handicapped person. A donation mortis causa (under condition of the death of the donor) is valid as soon as accepted.

Wills can be made void by the making of a new will, by the destruction of the document, or by the failure of the heir to accept it.

A testament becomes void where a “turpis persona” rather than a brother or a sister has been nominated, if legal rights are ignored, or if the rights of the trustee to retain a certain portion of the inheritance are violated.

Intestacy

If there is no valid will, intestate succession will take place in an order accord­ing to which descendants have priority over the preceding generation, and par­ents are preferred to collaterals.

Joint rights of a number of persons (concursus plurium personarum ad idem)

In the chapter on concursus we find listed joint debtors on the ground of promise, or because of delict, and also subjects jointly entitled to a right, as is the case, first, in co-ownership and, secondly, in a body of persons where res­olutions are decided by the majority. Further, there is concursus in bankruptcy, in the case of co-heirs, and where there is more than one creditor in a mort­gage.

Actions concerning rights and duties

Acts are valid unless they fall in the class of exceptions. All illicit actions are sub­ject to exception and void as far as the person acting is concerned, an example being simony. Also void are the following: donations between husband and wife, and parents and children; donations exceeding certain sums; constitution of a dowry by a widow entering a new marriage within a year of the death of her husband; coming to a settlement (transactio) in matters of ecclesiastical and criminal law; the giving of security by a wife, or a soldier, or a priest for a lay­man; contracts lacking the prescribed form; written documents not mentioning the grounds (causa); the renunciation of her legal portion by a daughter not ade­quately endowed; an arrangement between husband and wife according to which the husband is not responsible for negligence as regards the dowry; and, finally, a contract concerning the forfeiture of a pledge, if the debtor will not or cannot pay at the time fixed.

In other cases, certain actions are voidable. This applies to cases of violation of the principle of fair price (laesio enormis), wills infringing statutory portions, the acts of minors, acts of the church, and even of the State, involving a loss of right and thus giving a claim to restoration to original status (restitutio in inte­grum). Also voidable are, first, where an absent person, threatened by a loss of rights, has a potential claim to restitution and, secondly, the case of a donation revocable on the grounds of the ingratitude of the donee, of supervening poverty of the donor, or of a newly-born child to the donor. An otherwise invalid act may sometimes be given force by an oath.

Additional acts or transactions (actus adjectiones}

“Additional actions” cover conditions, terms and modalities. Leibniz is primar­ily interested in conditions in the field of marriage and wills. The basic rule is that impossible and immoral conditions make the whole act null and void, except in cases of wills and promises to marry (sponsalia), where the immoral condition is null and the act itself valid. This is also the case in a will where a condition infringes on liberty, for example, “you are my heir if you never drink wine”. The promise is void, however, if the condition is inherently contrary to the essence of marriage. Examples would be: “I will marry you if you are a Goddess” or “if I do not find a prettier girl”. Yet, should such a promise be fol­lowed by copula carnalis, the marriage is valid. The institution of an heir under the condition “if Titius wishes it” is also void. All acts that by their nature do not admit conditions are made void by the addition of a condition. In the case of a merely negative condition—“you will be my heir if you will not sue Gaius”—there is no need to wait until the death of the heir to clarify whether the condition has been implemented or not; the instituted person immediately becomes heir but has to give security.

Anything which is not an exception can be the object of a right and a duty or of a right and obligation

The list of exclusions comprises: all things not enforceable by the magistrate, such as impossible and illegal matters, personal actions, and all things not in commercio (able to be the object of commerce)—the air, rivers, the sea, the coast, public things, things dedicated to ecclesiastical purposes, free men. Furthermore, all things outside my personal interest are excluded. This means I cannot oblige you not to drink wine nor to laugh (or not to laugh), nor to com­mit similar, merely physical, acts. Further exclusions from being the object of an obligation cover the promise of a quota litis, exorbitant interest rates (i.e. over 5 per cent), interest on interest, interest exceeding the capital (except after the creditor has obtained a judgment), and preliminary deduction of interest at the time when the loan is granted.

The same rules apply to rent, in that it is not legally possible to sell it for less than 5 per cent, and in that it is not legally possible to add a clause obliging the seller to buy the rent back at the option of the buyer. Other objects which may not validly be dealt with are monopolies concerning goods essential for main­taining life, things the subject of litigation, goods which are part of a dowry, or a donation between husband and wife. Also excluded are things in the patri­mony of a minor, weapons, everything exceeding the amount that the respective persons (parents, husbands and wives, parents-in-law, members of a company, donors, noblemen, soldiers, doctors) can offer after deduction for the necessities of their living, future rights, public burdens without the consent of the relevant magistrate, the immovable property of dependants, and something that belongs inseparably to a building.

What the object of a right and an obligation can be, if it is not in the excepted class

If you have a duty to deliver a thing, the thing itself is immediately the object of the obligation. If the object of the obligation is a duty to permit something, or an omission caused by your negligence, only the estimated value in money has to be paid. If there was intention, consequential damages are due. If the perfor­mance is impossible, nothing is owed. Yet the debtor owes an equivalent if he knew from the beginning that performance was impossible, other than because the object was not in commercio.

The risk of damage to any object, i.e. all danger of loss of the principal or its fruits, lies with the owner or him who has the power to acquire ownership, e.g. the purchaser prior to the delivery of the thing. The same is true for a bill of exchange, if the payee omits protest.

If money is owed, the object of the obligation is not any item such as a coin but the value. Therefore the duty is to pay back as much as is necessary to buy the equivalent available for the same sum at the time of the conclusion of the contract. Leibniz proudly, and erroneously, adds that this rule by itself is able to put an end to all controversies concerning money. Yet nobody is obliged to accept as payment more than 25 florins in coins.

Everything is comprised under the measure of damages (i.e. the difference - in regard both to a real loss and to a missed gain - between the value you have and that you would have had without the interference of another per­son) that is capable of objective proof or is in accordance with an oath sworn within a term fixed by the magistrate. The estimated value is understood to be the normal price, but personal feelings and sentimental usage may also be included.

The grounds (causa) of a right or an action, and of obligation in general

Every person and thing is obliged not to do harm to me. Every person is also obliged not to do anything with the intent to do harm, even if no actual damage follows. Where there is a probability of damage, direct or indirect, security must be given or the threat removed. This is the reason for requiring security for a usufruct (from which the parents are free). Furthermore, every person is obliged not to do anything with purely malicious intent or solely from envy. Thus one may not build with the sole purpose of causing inconvenience to a neighbour; this is obviously a means of causing harm and so gives rise to an action of injury.

There is always an obligation to restore the situation to what it would have been prior to the damaging action.

A man is responsible for those of his actions done with the intent to cause damage and, further, for his fraudulent failure to look after others’ property in his control; and in all matters of private law, a person is responsible for reckless negligence (culpa lata), which is regarded as being equivalent to malicious intent. A man is obliged to pay the value of any loss caused by negligence of a medium grade, or by failure to take the care of the reasonable man with some­thing which he holds for the benefit of both himself and some other. This does not apply if the damage is caused by a true accident. There is also liability for loss caused by merely slight negligence in regard to any object belonging to me which the wrongdoer possessed simply in his own interest. On the same grounds someone with a usufruct is obliged to repair the object and to bear the real burdens.

The administrator (gestor), according to some authors the representative (mandatary), and also the man who receives something as a loan for his use (commodatum), are liable for the slightest negligence. Liable for ordinary care is the man who possesses in good faith. Someone who possesses something over­due (in mora) is responsible even for accidents. “Mora” starts with the end of the day fixed for the performance.

Degrees of responsibility in the offender are defined as follows. He who kills a man is, according to the canon law, liable to have a Mass read for the sake of the soul of the deceased. To plan damage to another, whether by act or omis­sion, counts as intent. To be able, by using one’s reason, to foresee the risk of damage, and not to avoid the action, is negligence. If a loss necessarily follows an action it is a case of reckless negligence. If the damage is only probable it is slight negligence, if it merely possible there is only the slightest degree of negli­gence. The more easily the risk could have occurred to the mind of a rational man, the closer is the connection between the action and the loss. If all fore­thought is useless, i.e. if the damage though foreseeable is unavoidable by human care, it is simply a case of chance (accident, casus).

The action of an animal can be regarded either as having a sort of intent or of being a kind of negligence, depending on the intellect of the animal. Further, men are responsible for the trees in their gardens and also for poisonous herbs, for dangerous animals, the oven of a bakery, and all sorts of hanging objects.

Someone who begins to build a house or to change the course of a river is also responsible for loss so caused. Responsibility there lies for a loss suffered by other people to our advantage. In this context also fall to be discussed unjust enrichment, the liability of the gestor (administrator), and the obligation to tol­erate on my property what is useful for you without being harmful to me. This is the basic principle of all private law in Leibniz’ theory, which in Latin is called “innoxia utilitas”. Additionally Leibniz mentions that all agitators, makers of defamatory statements, and those who pretend certain rights against me, are obliged to prove their assertions or to remain tacit.

The ground of real rights (rights in corporeal objects) in general

There is no causa of a real right other than possession and a disposition to have possession. Mere agreement is insufficient, except in cases where the law pro­vides for it as a special case. A will is also insufficient, because a will does not constitute a real right, but transfers an already existing real right to the succes­sor who represents the deceased.

The possessor is one who has a thing in his power, either personally or through another person who is not possessing for his own purposes, i.e. in his own interest. Possession is also acquired by the prior possessor renouncing his possession in the open and unoccupied presence of the thing (traditio longa manu). Such delivery is also possible by using a symbol, e.g. a key. The succes­sor to a function acquires the possession of his predecessor automatically, unlike the successor in the patrimony. (I am deemed to be in the possession of a right if another claimant gives way to my protestation.) Delivery can also be effected by identifying a particular part of a mass or after tasting. Dignities and functions, however, are transferred only symbolically.

The right of possession: This for Leibniz is a real right in the strict sense of the word. According to this principle the possessor may not be disturbed, and may lawfully keep possession until it is proved unjustified. Someone who lost pos­session by force (spoliatus), by a clandestine act (clam), or by lending the object to other persons (a grant precario), must be restored to all his rights, even although the other party is prepared to prove that he did not legally possess. The justification for this procedure is that the latter question is postponed to the plea of right (petitorium). If it is not clear who is the possessor and who the disturber, and if there is danger of force being used, the object at issue has to be seques­trated, and an award of interim possession made at a summary trial.

The right of retention

I have the right of retention with regard to a thing if it is itself the object of my right, as is the case with the right to take as a pledge an animal which caused harm to me. This does not apply to a man. The same is valid if the owner of a thing is obliged to me and his obligation arises out of my possession or related cause. Thus someone who has incurred “useful” expenses on a thing has a right of retention, as does the innkeeper regarding the goods of his guest to secure payment, and also a married woman as regards the property of her husband in order to secure her rights to the dowry.

In the same way I have a right of retention if I am in possession of a thing over which I have a mortgage (equitable lien). As far as the right of retention is con­cerned a mortgage is equivalent to a pledge. If you are indebted to me for two reasons and you gave me a pledge for one out of the two debts I can retain the pledge also for the other. A tenant is not obliged to leave earlier than the term of the contract, provided that he makes proper use of the object let to him and pays the rent. He has to leave the premises if the landlord wishes to reconstruct the object, wants to sell it or needs if for his own purposes. But in these cases the landlord has to pay damages to the tenant.

Right of option: To have a right of option means that a sale can be undone within one year and a month from the time of the person entitled to the option getting knowledge, and at the same price. Such a right was held by the owner in the case of a right to erect a house on someone else’s land, the first bidder in an auction and, in former times, tenants of public lands. In many places in the Empire this right is also shared by the nearest relatives (in particular in cases of inherited property), by agnates in feudal law, additionally between husbands and wives, and finally by neighbours (but only for their own use).

The right to sequestrate

I have power to arrest something if I can prove in a preliminary trial that the owner of the thing is under an obligation to me and that there is danger of its loss. In that case it is possible to sequestrate it or to detain it without raising the question of title, except in a market enjoying a special privilege from the Emperor.

The right to occupy somebody else’s property

I have the right to occupy property if its owner is under an obligation to me and refuses to defend against my claim, or to respond to a judgment. The right is first granted over moveable things, then immoveables, then claims (actions), and in extreme cases, if all other measures are not sufficient, even over what is neces­sary for the debtor to maintain his life. The creditor is installed in his position in proportion to the sum owed; he will possess in the same way as if he had a right of distraint.

The right of mortgage

The right of mortgage means that an object is security for a person in the same way as a guarantor is security for the debtor. This is true insofar as the creditor can obtain from the thing what is due to him by selling it in an auction. Yet a third person in possession of the thing (or having a right to it) can assert his right so that the thing itself is only forfeit if the other assets of the debtor cannot pay the debt. If the debtor cannot pay and the pledge is to go to auction, the credi­tor receives the thing itself or the sum offered by the highest bidder. A mortgage may be constituted by means of a contract or agreement, even without delivery. If the security is delivered to the creditor it is called a pledge or pawn. A right of mortgage also exists for a person who occupies the property of a defaulting debtor with the authority of the judge, and for a landlord against the assets of his tenant. A person who needs an administrator or curator, e.g. a minor or a married woman, has a mortgage on the assets of the administrator. Other cases of mortgage are the rights of the State in regard to pecuniary penalties, of some­one who is entitled to maintenance, of the creditor of an annual rent, children and parents in regard to their statutory portion, legatees, those who have paid usurious interest, and finally all creditors as to rents.

The right of administration

The right of administration entails that one person executes a right as represen­tative of another. Administration also comprises the right of usufruct.

The right of usufruct

The simple right of use means the use of someone else’s thing only in a case of emergency. Usufruct in the full sense of the word means the right to use a thing and benefit from it in the same sort of way as the owner. In principle both are rights of administration and representation combined with the peculiarity that this is destined for one’s own purposes and benefit.

The possessor in good faith acquires the fruits in the same way as one entitled to usufruct. A woman entering a second marriage has to hand over to the chil­dren of her first marriage all she inherited from her first husband, retaining only a usufruct.

Similar to usufruct are the “jus emphyteuticum” and the right to build on other people’s land; feus also fit in this context.

Servitude rights

The right of servitude is a burden in the passive sense. It is owed by land to land, not for pleasure but for use. If a building is the object of the servitude, the debtor is obliged to keep the house in good condition. Everyone is entitled to do what­ever he wishes on his own ground, as long as it is not prohibited by the law. However, those living further down a slope have to tolerate the water coming down the hill. There is no total freedom to brew beer. The hunter is free to fol­low a wounded (game) animal onto another’s land.

Charges on land

A charge on land or a real burden is what is due to the owner in the case of her­itable leases. If such a lease is sold by the lessee a certain sum (laudemium) must be paid to the proprietor. There are different types of leases, with different sums to pay, for, respectively, ecclesiastical leases, leases combined with military ser­vices, and feus.

The right of consolidation

Every proprietor has a right of consolidation, i.e. to exercise for himself the pro­prietary rights. This takes priority even over the fiscal rights of the State.

Titles to property

The plenitude of rights in regard to a thing apart from those rights which are explicitly excluded, comprise the following: in the first place, the acquisition, with the intent to become its owner, of the possession of something which belongs to nobody. Derelict land, however, belongs to the State. Property in treasure is shared equally between the finder and the owner of the land on which it is found. Nowadays wild animals and fish captured on somebody else’s land do not belong to the taker.

Birds and rivers belong to the authorities. Royal prerogatives or prerogatives of the State are: armouries, roads, navigable rivers, ports, etc. Anything that is seized in a war belongs to the man who seized it. Special rules exist for the inte­gral parts of a compound object, islands built in a river, and for questions of specification.

Property is transferred by corporeal delivery of the thing. Yet if a thing is sold or exchanged there is no transfer of property without performance of the counter claim, as is said by Justinian in Inst. 2.1.41. Someone who acquires with the help of a representative acquires property without getting possession. That goes equally for heirs, members of a company, legatees, and the State.

The grounds of a right against a person concerning a thing

Leibniz defines voluntary obligations as “cause of a right directed against a per­son involving a thing” as far as certain things are involved, which are to be handed over (“dare”). This stands in contrast to obligations to do something (“facere”). Leibniz here gives a long list of declarations and actions which under different circumstances can form the basis for an obligation to deliver some­thing. In particular, everybody is bound to perform what he promised the State, what he promised on a legitimate cause, or what he began to perform even without previous binding promise. Also one has to fulfil a vow or what one promised God, and every promise which is registered in a competent place. A subject is obliged to do what his superior commands with irrevocable determi­nation, and an heir is obliged to do what the testator laid down. I become obliged by the oath of another person who was compelled to swear by the judge or by myself; this has the consequence that in a subsequent case the defence of perjury will not lie. A person who nominates a suitable tutor is liable in the same way as a guarantor.

A person has to perform what he promises to another person who, in his turn, accepts the promise. This is called a contract. With this statement Leibniz alludes to the enforceability of the so called “bare pact” (“pactum nudum”). In a contract with reciprocal performances nobody is obliged to perform his part if the other party is not prepared to perform his. The rent of a tenant is to be reduced if he is unavoidably prevented by fate from the use of the thing rented. In the case of unilaterally declared withdrawal, the purchaser who withdraws loses his deposit, and the seller, if he withdraws, has to restore twice the sum received. Anyone who delivers a thing on the basis of a contract with reciprocal promises is responsible for all defects and hidden qualities of the thing which he concealed or dissimulated. The purchaser is entitled to return the thing and have the payment reimbursed or, if he chooses, receive the difference between the price of the defective object and the object agreed on. Again, based on “innoxia utilitas” is the rule that anyone is obliged to hand over a thing which is of inter­est for another person but does not matter to him; this applies particularly to all sorts of documents. With this statement Leibniz leaves the field of voluntary obligations. He continues by remarking that everybody is obliged to act as a wit­ness, although there are certain exceptions. Everyone has a duty to assume the task of guardian. Parents owe their children a dowry or a donation on the occa­sion of marriage. Members of a family are obliged to maintain each other. Somebody who seduces a woman and refuses to marry her has to pay a dowry, to pay the costs of the birth of any child and to maintain the child. The poor are entitled to legal assistance (Armenrecht). A man who abducts a woman from her parents, even if he acted without violence and even if it was not against her will, and even if he marries her, has to provide a dowry.

The grounds of a right that is available only against one person

This is where the debtor may not become free of his obligations by the offer of an equivalent. One of the basic principles of the law of obligations was that there was no specific performance. This was expressed by the lawyers through the formula that the debtor becomes free if he offers the equivalent in money. This principle however did not apply in personal relationships involving rever­ence, obedience, and acting in good faith. Further, even if acting in good faith and obedience are renounced, one must still show reverence. Reverence is due in particular to the ministers of the church. Anyone accepting a usufruct under an oath of fealty is bound to military services. Such a person must minimize loss to and promote the advantage of his lord, just as with the rules applied by the secular courts. Fealty is due in return for protection. All subjects owe obedience to their superiors as far as is possible, taking account of their own good. Magistrates, parents, guardians, teachers and the husband vis-a-vis his wife are considered superiors. All these persons have the authority to castigate their sub­jects mildly.

The creditor can arrest the escaping debtor who, if he has no assets, has to work for the creditor in order to provide for his livelihood. Anyone who spends money on another person in order to maintain him, or to buy his freedom, has a right against the person of the beneficiary until he restores what was expended on his behalf. Someone holding a pagan is not obliged to free him in return for a ransom, but may keep him as slave, except that Pope Pius V said that he is freed by baptism.

People in bondage in Germany are personally free, but cannot leave the land. Children of female slaves are in a special condition. Nobody can make himself a slave or a villein. Equally nobody can reduce the status of another, excluding criminal convictions.

Slavery does not affect one’s right to life. “Patria potestas” nowadays stops when the children achieve the age of majority. A person who is not willing to fulfil an act which he is obliged to fulfil, and cannot pay the estimated value, can be compelled with corporeal force to labour to provide such value. A promise to marry a person (“sponsalia de futuro”) is to be fulfilled as regards that person.

Following this Leibniz discusses cases of validity or invalidity with regard to marriage promises. The remainder of this chapter deals with matters of family law.

Extinction of rights and obligations, and permanent bars

An obligation is extinguished if the thing obliged perishes, or the person obliged dies, unless damages have already been awarded, or there is an heir. In the same way rights are extinguished by withdrawal, fulfilment, renunciation, negligence, prescription. Performance effected by another person is valid, even against the intention of the creditor.

Other defences for the debtor are: set-off, remission of a debt or renunciation, dereliction (abandonment), and novation. Another defence is the concurrence of actionable rights (from which only one can be sued upon). The widow can choose between the restoration of the dowry or an annual payment for life (con­sisting of the fruits of twice the sum of the original dowry). If a receipt is given, or a deed taken back or cancelled, a renunciation is to be presumed. It is also to be presumed that the extinction of an obligation is intended if twice the sum of the deposit is returned. Leibniz adds that he doubts the validity of the principle which allows either party to withdraw before the beginning of the fulfilment of a contract. In some cases a person is deprived of his right by law; this is true for banned and excommunicated persons.

The following paragraphs deal with the preconditions for the loss of a feu. The consequence of misuse of self-help is the loss of the right claimed. If the owner does not treat his land properly the authorities may take it away. Buying something from the treasury extinguishes all possible rights of third parties. A person can be cited to appear under the threat of losing all rights if he is contu­macious.

Rights and duties extinguish by prescription

There is no prescription of a right which gives only a potentiality, such as the right to owe obedience to no man, or the right to freedom in general, or freedom from taxes. The same lack of prescription applies to a mere faculty to use the air, the sea, etc. The final paragraphs contain the particular rules of prescrip­tion.