Alienation of Property

C. Alienation of Property

§ 65 THE reason I can alienate my property is that it is mine only in so far as I put my will into it. Hence I may abandon (derelinquère) as a res nullius anything that I have or yield it to the will of another and so into his possession, provided always that the thing in question is a thing external by nature. Addition: While prescription is an alienation with no direct expression of the will to alienate, alienation proper is an expression of my will, of my will no longer to regard the thing as mine. The whole matter may also be so viewed that alienation is seen to be a true mode of taking possession. To take possession of the thing directly is the first moment in property. Use is likewise a way of acquiring property. The third moment then is the unity of these two, taking possession of the thing by alienating it. [Taking possession is positive acquisition. Use is the negation of a thing’s Particular characteristics (see § 59). Alienation is the synthesis of Positive and negative; it is negative in that it involves spurning the thing altogether; it is positive because it is only a thing completely mine which I can so spurn.] § 66 Therefore those goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible. Such characteristics are my personality as such, my universal freedom of will, my ethical life, my religion. Remark: The fact that what mind is in accordance with its concept or implicitly it also should be explicitly and existentially (the fact that thus mind should be a person, be capable of holding property, should have an ethical life, a religion) is the Idea which is itself the concept of mind. As cause si, i.e as free causality, mind is that cuius natura non potest concipi nisi existens. It is just in this concept of mind as that which is what it is only through its own free causality and through its endless return into itself out of the natural immediacy of its existence, that there lies the possibility of a clash: i.e. what it is potentially it may not be actually (see § 57), and vice versa what it is actually (e.g. evil, in the case of the will) may be other than what it is potentially. Herein lies the possibility of the alienation of personality and its substantive being, whether this alienation occurs unconsciously or intentionally. Examples of the alienation of personality are slavery, serfdom, disqualification from holding property, encumbrances on property, and so forth. Alienation of intelligence and rationality, of morality, ethical life, and religion, is exemplified in superstition, in ceding to someone else full power and authority to fix and prescribe what actions are to be done (as when an individual binds himself expressly to steal or to murder, &c., or to a course of action that may involve crime), or what duties are binding on one’s conscience or what religious truth is, &c. The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have, thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them. This return of mine into myself, whereby I make myself existent as Idea, as a person with rights and moral principles, annuls the previous position and the wrong done to my concept and my reason by others and myself when the infinite embodiment of selfconsciousness has been treated as something external, and that with my consent. This return into myself makes clear the contradiction in supposing that I have given into another’s possession my capacity for rights, my ethical life and religious feeling; for either I have given up what I myself did not possess, or I am giving up what, so soon as I possess it, exists in essence as mine alone and not as something external. Addition: It is in the nature of the case that a slave has an absolute right to free himself and that if anyone has prostituted his ethical life by hiring himself to thieve and murder, this is an absolute nullity and everyone has a warrant to repudiate this contract. The same is the case if I hire my religious feeling to a priest who is my confessor, for such an inward matter a man has to settle with himself alone. A religious feeling which is partly in control of someone else is no proper religious feeling at all. The spirit is always one and single and should dwell in me. I am entitled to the union of my potential and my actual being. § 67 Single products of my particular physical and mental skill and of my power to act I can alienate to someone else and I can give him the use of my abilities for a restricted period, because, on the strength of this restriction, my abilities acquire an external relation to the totality and universality of my being. By alienating the whole of my time, as crystallised in my work, and everything I produced, I would be making into another’s property the substance of my being, my universal activity and actuality, my personality. Remark: The relation here between myself and the exercise of my abilities is the same as that between the substance of a thing and its use (see § 61). It is only when use is restricted that a distinction between use and substance arises. So here, the use of my powers differs from my powers and therefore from myself, only in so far as it is quantitatively restricted. Force is the totality of its manifestations, substance of its accidents, the universal of its particulars. Addition: The distinction here explained is that between a slave and a modern domestic servant or day-labourer. The Athenian slave perhaps had an easier occupation and more intellectual work than is usually the case with our servants, but he was still a slave, because he had alienated to his master the whole range of his activity.

§ 68

What is peculiarly mine in a product of my mind may, owing to the method whereby it is expressed, turn at once into something external like a ‘thing’ which eo ipso may then be produced by other people. The result is that by taking possession of a thing of this kind, its, new owner may make his own the thoughts communicated in it or the mechanical invention which it contains, and it is ability to do this which sometimes (i.e. in the case of books) constitutes the value of these things and the only purpose of possessing them. But besides this, the new owner at the same time comes into possession of the universal methods of so expressing himself and producing numerous other things of the same sort. Remark: In the case of works of art, the form — the portrayal of thought in an external medium — is, regarded as a thing, so peculiarly the property of the individual artist that a copy of a work of art is essentially a product of the copyist’s own mental and technical ability. In the case of a literary work, the form in virtue of which it is an external thing is of a mechanical kind, and the same is true of the invention of a machine; for in the first case the thought is presented not en bloc, as a statue is, but in a series of separable abstract symbols, while in the second case the thought has a mechanical content throughout. The ways and means of producing things of that mechanical kind as things are commonplace accomplishments. But between the work of art at one extreme and the mere journeyman production at the other there are transitional stages which to a greater or less degree partake of the character of one or other of the extremes. § 69 Since the owner of such a product, in owning a copy of it, is in possession of the entire use and value of that copy qua a single thing, he has complete and free ownership of that copy qua a single thing, even if the author of the book or the inventor of the machine remains the owner of the universal ways and means of multiplying such books and machines, &c. Qua universal ways and means of expression, he has not necessarily alienated them, but may reserve them to himself as means of expression which belong to him. Remark: The substance of an author’s or an inventor’s right cannot in the first instance be found in the supposition that when he disposes of a single copy of his work, he arbitrarily makes it a condition that the power to produce facsimiles as things, a power which thereupon passes into another’s possession, should not become the property of the other but should remain his own. The first question is whether such a separation between ownership of the thing and the power to produce facsimiles which is given with the thing is compatible with the concept of property, or whether it does not cancel the complete and free ownership (see § 62) on which there originally depends the option of the original producer of intellectual work to reserve to himself the power to reproduce, or to part with this power as a thing of value, or to attach no value to it at all and surrender it together with the single exemplar of his work. I reply that this power to reproduce has a special character, viz. it is that in virtue of which the thing is not merely a possession but a capital asset (see §§ 170 ff.); the fact that it is such an asset depends on the particular external kind of way in which the thing is used, a way distinct and separable from the use to which the thing is directly destined (the asset here is not, as has been said, an acessio naturalis like fetura). Since then this distinction falls into the sphere of that whose nature entails its divisibility, into the sphere of external use, the retention of part of a thing’s [external] use and the alienation of another part is not the retention of a proprietorship without utile. The purely negative, though the primary, means of advancing the sciences and arts is to guarantee scientists and artists against theft and to enable them to benefit from the protection of their property, just as it :was the primary and most important means of advancing trade and industry to guarantee it against highway robbery. Moreover, the purpose of a product of mind is that people other than its author should understand it and make it the possession of their ideas, memory, thinking, &c. Their mode of expression, whereby in turn they make what they have learnt (for ‘learning’ means more than ‘learning things by heart’, ‘memorising them’; the thoughts of others can be apprehended only by thinking, and this re-thinking the thoughts of learning too) into a ‘thing’ which they can alienate, very likely has some form of its own in every case. The result is that they may regard as their own property the capital asset accruing from their claim for themselves the right to reproduce their learning in books of their own. Those engaged in the propagation of knowledge of all kinds, in particular those whose appointed task is teaching, have as their specific function and duty (above all in the case of the positive sciences, the doctrine of a church, the study of positive law, &c.) the repetition of well-established thoughts, taken up ab extra and all of them given expression already. The same is true of writings devised for teaching purposes and the spread and propagation of the sciences. Now to what extent does the new form which turns up when something is expressed again and again transform the available stock of knowledge, and in particular the thoughts of others who still retain external property in those intellectual productions of theirs, into a private mental property of the individual reproducer and thereby give him or fail to give him the right to make them his external property as well? To what extent is such repetition of another’s material in one’s book a plagiarism? There is no precise principle of determination available to answer these questions, and therefore they cannot be finally settled either in principle or by positive legislation. Hence plagiarism would have to be a matter of honour and be held in check by honour.

Thus copyright legislation attains its end of securing the property rights of author and publisher only to a very restricted extent, though it does attain it within limits. The ease with which we may deliberately change something in the form of what we are expounding or invent a trifling modification in a large body of knowledge or a comprehensive theory which is another’s work, and even the impossibility of sticking to the author’s words in expounding something we have learnt, all lead of themselves (quite apart from the particular purposes for which such repetitions are required) to an endless multiplicity of alterations which more or less superficially stamp someone else’s property as our own. For instance, the hundreds and hundreds of compendia, selections, anthologies, &c., arithmetics, geometries, religious tracts, &c., show how every new idea in a review or annual or encyclopaedia, &c., can be forthwith repeated over and over again under the same or a different title, and yet may be claimed as something peculiarly the writer’s own. The result of this may easily be that the profit promised to the author, or the projector of the original undertaking, by his work or his original idea becomes negligible or reduced for both parties or lost to all concerned. But as for the effectiveness of honour in checking plagiarism, what has happened is that nowadays we scarcely hear the word ‘plagiarism’, nor are scholars accused of stealing each other’s results. It may be that honour has been effective in abolishing plagiarism, or perhaps plagiarism has ceased to be dishonourable and feeling against it is a thing of the past; or possibly an ingenious and trivial idea, and a change in external form, is rated so highly as originality and a product of independent thinking that the thought of plagiarism becomes wholly insufferable. § 70 The comprehensive sum of external activity, i.e. life, is not external to personality as that which itself is, immediate and a this. The surrender or the sacrifice of life is not the existence of this personality but the very opposite. There is therefore no unqualified right to sacrifice one’s life. To such a sacrifice nothing is entitled except an ethical Idea as that in which this immediately single personality has vanished and to whose power it is actually subjected. Just as life as such is immediate, so death is its immediate negation and hence must come from without, either by natural causes, or else, in the service of the Idea, by the hand of a foreigner. Addition: A single person, I need hardly say, is something subordinate, and as such he must dedicate himself to the ethical whole. Hence if the state claims life, the individual must surrender it. But may a man take his own life? Suicide may at a first glance be regarded as an act of courage, but only the false courage of tailors and servant girls. Or again looked upon as a misfortune, since it is inward distraction n it may be which leads to it. But the fundamental question is: Have I a right to take my life? The answer will be that I, as this individual, am not master of my life, because life, as the comprehensive sum of, my activity, is nothing external to personality, which itself is this immediate personality. Thus when a person is said to have a right over his life, the words are a contradiction, because they mean that a person has a right over himself. But he has no such right, since he does not stand over himself and he cannot pass judgment on himself. When Hercules destroyed himself by fire and when Brutus fell on his sword, this was the conduct of a hero against his personality. But as for an unqualified right to suicide, we must simply say that there is no such thing, even for heroes. Transition from Property to Contract § 71 Existence as determinate being is in essence being for another (see Remark to § 48). One aspect of property is that it is an existent as an external thing, and in this respect property exists for other external things and is connected with their necessity and contingency. But it is also an existent as an embodiment of the will, and from this point of view the ‘other’ for which it exists can only be the will of another person. This relation of will to will is the true and proper ground in which freedom is existent. — The sphere of contract is made up of this mediation whereby I hold property not merely by means of a thing and my subjective will, but by means of another person’s will as well and so hold it in virtue of my participation in a common will. Remark: Reason makes it just as necessary for men to enter into contractual relationship — gift, exchange, trade, &c.-as to possess property (see Remark to § 45) — While all they are conscious of is that they are led to make contracts by need in general, by benevolence, advantage, &C., the fact remains that they are led to do this by reason implicit within them, i.e. by the Idea of the real existence of free personality, ‘real’ here meaning ‘present in the will alone’. Contract presupposes that the parties entering it recognise each other as persons and property owners. It is a relationship at the level of mind objective, and so contains and presupposes from the start the moment of recognition (compare Remarks to §§ 35 and 57). Addition: In a contract I hold property on the strength of a common will; that is to say, it is the interest of reason that the subjective will should become universal and raise itself to this degree of actualisation. Thus in contract my will still has the character ‘this’, though it has it in community with another will. The universal will, however, still appears here only in the form and guise of community. ii Contract § 72 CONTRACT brings into existence the property whose external side, its side as an existent, is no longer a mere ‘thing’ but contains the moment of a will (and consequently the will of a second person also). Contract is the process in which there is revealed and mediated the contradiction that I am and remain the independent owner of something from which I exclude the will of another only in so far as in identifying my will with the will of another I cease to be an owner.

§ 73 I have power to alienate a property as an external thing (see § 65); but more than this, the concept compels me to alienate it qua property in order that thereby my will may become objective to me as determinately existent. In this situation, however, my will as alienated is at the same time another’s will. Consequently this situation wherein this compulsion of the concept is realised is the unity of different wills and so a unity in which both surrender their difference and their own special character. Yet this identity of their wills implies also (at this stage) that each will still is and remains not identical with the other but retains from its own point of view a special character of its own. § 74 This contractual relationship, therefore, is the means whereby one identical will can persist within the absolute difference between independent property owners. It implies that each, in accordance with the common will of both, ceases to be an owner and yet is and remains one. It is the mediation of the will to give up a property, a single property, and the will to take up another, i.e. another belonging to someone else; and this mediation takes place when the two wills are associated in an identity in the sense that one of them comes to its decision only in the presence of the other. § 75 The two contracting parties are related to each other as immediate self-subsistent persons. Therefore [a] contract arises from the arbitrary will. [b] The identical will which is brought into existence by the contract is only one posited by the parties, and so is only a will shared in common and not an absolutely universal will. [c] The object about which a contract is made is a single external thing, since it is only things of that kind which the parties’ purely arbitrary will has it in its power to alienate (see §§ 65ff.) Remark: To subsume marriage under the concept of contract is thus quite impossible; this subsumption — though shameful is the only word for it is propounded in Kant’s Philosophy of Law. It is equally far from the truth to ground the nature of the state on the contractual relation, whether the state is supposed to be a contract of all with all, or of all with the monarch and the government. The intrusion of this contractual relation, and relationships concerning private property generally, into the relation between the individual and the state has been productive of the greatest confusion in both constitutional law and public life. Just as at one time political rights and duties were considered and maintained to be an unqualified private property of particular individuals, something contrasted with the right of the monarch and the state, so also in more recent times the rights of the monarch and the state have been regarded as the subjects of a contract and is grounded in contract, as something embodying merely a common will and resulting from the arbitrariness o parties united into a state. However diff these two points of view may be, they have this in common, that they have transferred the characteristics of private Property into a sphere of a quite different and higher nature. (See below, Ethical Life and the State.) Addition: It has recently become very fashionable to regard the state as a contract of all with all. Everyone makes a contract with the monarch, so the argument runs, and he again with his subjects. This point of view arises from thinking superficially of a mere unity of different wills. In contract, however, there are two identical wills who are both persons and wish to remain property-owners. Thus contract springs from a person’s arbitrary will, an origin which marriage too has in common with contract. But the case is quite different with the state; it does not lie with an individual’s arbitrary will to separate himself from the state, because we are already citizens of the state by birth. The rational end of man is life in the state, and if there is no state there, reason at once demands that one be founded. Permission to enter a state or leave it must be given by the state; this then is not a matter which depends on an individual’s arbitrary will and therefore the state does not rest on contract, for contract presupposes arbitrariness. It is false to maintain that the foundation of the state is something at the option of all its members. It is nearer the truth to say that it is absolutely necessary for every individual to be a citizen. The great advance of the state in modern times is that nowadays all the citizens have one and the same end, an absolute and permanent end; it is no longer open to individuals, as it was in the Middle Ages, to make private stipulations in connection with it. § 76 Contract is formal when the double consent whereby the common will is brought into existence is apportioned between the two contracting parties so that one of them has the negative moment — the alienation of a thing — and the other the positive moment — the appropriation of the thing. Such a contract is gift. But contract may be called real when each of the two contracting wills is the sum of these mediating moments and therefore in such a contract becomes a property owner and remains so. This is a contract of exchange. Addition: Contract implies two consenting parties and two things. That is to say, in a contract my purpose is both to acquire property and to surrender it. Contract is real when the action of both parties is complete, i.e. when both surrender and both acquire property, and when both remain property owners even in the act of surrender. Contract is formal where only one of the parties acquires property or surrenders it. § 77 Since in real contract each party retains the same property with which he enters the contract and which at the same time he. surrenders, what thus remains identical throughout as the property implicit in the contract is distinct from the external things whose owners alter when the exchange is made. What remains identical is the value, in respect of which the subjects of the contract are equal to one another whatever the qualitative external differences of the things exchanged. Value is the universal in which the subjects of the contract participate (see § 63) Remark: The legal provision that laesio enormis annuls the obligation arising out of the making of a contract has its source, therefore, in the concept of contract, particularly in this moment of it, that the contracting party by alienating his property still remains a property owner and, more precisely, an owner of the quantitative equivalent of what he alienates. But a laesio is not merely enormis (as it is taken to be if it exceeds one-half of the value) but infinite, if someone has entered on a contract or made a stipulation of any sort for the alienation of inalienable goods (see § 66). A stipulation, moreover, differs from a contract, first, in its content, because it signifies only some single part or moment of the whole contract, and secondly, because it is the form in which the contract is settled (a point on which more will be said later). So far as its content is concerned, it comprises only the formal character of contract, i.e. the willingness of one party to give something and the willingness of the other to accept it; for this reason, the stipulation has been enumerated amongst so-called ‘unilateral’ contracts. The distinction between unilateral and bilateral contracts, and distinctions in Roman law between other types of contract, are sometimes superficial juxtapositions made from an isolated and often external point of view such as that of the different types of contractual forms; or sometimes they confuse characteristics intrinsic to contract itself with others which only arise later in connection with the administration of justice (actiones) and the legal processes giving effect to positive laws, and which are often derived from quite external circumstances and contravene the concept of right. § 78 The distinction between property and possession, the substantive and external aspects of ownership (see § 45), appears in the sphere of contract as the distinction between a common will and its actualisation, or between a covenant and its performance Once made, a covenant taken by itself in distinction from its performance is something held before the mind, something therefore to which a particular determinate existence must be given in accordance with the appropriate mode of giving determinate existence to ideas by symbolising them. This is done, therefore, by expressing the stipulation in formalities such as gestures and other symbolic actions, particularly by declaring it with precision in language, the most worthy medium for the expression of our mental ideas. Remark: The stipulation accordingly is the form given to the content of a contract, i.e. to what is agreed in it, and thereby this content, previously only an idea, attains its determinate existence. But the idea which we have of the content is itself only a form which the content takes; to have an idea of the content does not mean that the content is still something subjective, a desire or a wish for so and so. On the contrary, the content is the will’s ultimate decision on such subjective wishes. Addition: Just as in the theory of property we had the distinction between ownership and possession, between the substance of the matter and its purely external side, so here in contract we have the difference between a common will - covenant - and a particular will - performance. It lies in the nature of contract that it should be an expression of both the common and the particular will of the parties, because in it will is related to will. The covenant, made manifest in a symbol, and its performance are quite distinct from each other amongst civilised peoples, though amongst savages they may coincide. In the forests of Ceylon there is a tribe of traders who put down their property and wait quietly until others come to put theirs down opposite. Here there is no difference between the dumb declaration of will and the performance of what is willed. § 79 In contract it is the will, and therefore the substance of what is right in contract, that the stipulation enshrines. In contrast with this substance, the possession which is still being retained while the contract remains unfulfilled is in itself only something external, dependent for its character as a possession on the will alone. By making the stipulation, I have given up a property and withdrawn my particular arbitrary will from it, and it has eo ipso become the property of another. If then I agree to stipulated terms, I am by rights at once bound to carry them out. Remark: The difference between a mere promise and a contract lies in the fact that a promise is a statement that I will give or do or perform something in the future, and a promise still remains a subjective volition which because it is subjective I can still alter. A stipulation in a contract, on the other hand, is itself already the embodiment of the will’s decision in the sense that by making the stipulation I have alienated my property, it has now ceased to be mine, and I already recognise it as the property of another. The distinction in Roman law between pactum and contractus is one of a false type. Fichte at one time maintained that my obligation to keep a contract begins only when the other party starts fulfilling his side of it; his reason was that up to that point I am uncertain whether the other party’s declarations are seriously meant. In that case it would follow that the obligation to keep a contract before it was carried out would only be a moral one, not an obligation by rights. - But the expression of the stipulation is not simply a declaration of a general character; it embodies a common will which has been brought into existence and which has superseded the arbitrary and alterable dispositions of the parties. The question therefore is not whether the other party could have had different private intentions when the contract was made or afterwards, but whether he had any right to have them. Even if the other party begins to fulfil his side of the contract, it is equally open to me to do wrong if I like. The nullity of Fichte’s view is also shown by the fact that it would base contractual rights on the false infinite, i.e. on the progress ad infinitum involved in the infinite divisibility of time, things, action, &C. The embodiment of the will in formal gestures or in explicit and precise language is already the complete embodiment of the will as an intelligent entity, and the performance of the covenant so embodied is only the mechanical consequence.

It is true that in positive law there are so-called ‘real’ contracts as distinguished from ‘consensual’ contracts, in the sense that the former are looked upon as fully valid only when the actual performance (res, traditio rei) of the undertaking supervenes upon willingness to perform it; but this has nothing to do with the thing at issue. For one thing, these ‘real’ contracts cover particular cases where it is only this delivery by the other arty which puts me in a position to fulfil my side of the bargain, and where my obligation to do my part relates only to the thing after it has come into my hands, as happens for instance in loans, pawning, or deposits. (The same may also be the case in other contracts.) But this is a matter which concerns not the nature of the relation of the stipulation to performance but only the manner of performance. - For another thing, it is always open to the parties at their discretion to stipulate in any contract that the obligation of one party to perform his side shall not lie in the making of the contract itself as such, but shall arise only from the performance by the other party of his side.

§ 80 The classification of contracts and an intelligent treatment of their various species once classified is not here to be derived from external circumstances but from distinctions lying in the very nature of contract. These distinctions are those between formal and real contracts, between ownership and possession and use, between value and specific thing, and they yield contracts of the following sorts:

A. Gift.

1. Gift of a thing - gift properly so called.
2. Loan of a thing - i.e. the gift of a portion of it or of restricted use and enjoyment of it; here the lender remains the owner of the thing (mutuum and commodatum without interest). Here the thing lent is either a specific thing or else, even if it be such, it may none the less be looked on as universal, or it may be a thing which counts (like money) as a thing universal in itself.
3. Gift of service of any sort, e.g. the mere safe-keeping of a property (depositum). The gift of a thing on the special condition that its recipient shall not become its owner until the date of the donor’s death, i.e. the date at which e ceases in any case to be an owner of property, is testamentary disposition; this is not contained in the concept of contract but presupposes civil society and positive legislation.

B. Exchange.

1. Exchange as such: [a] exchange of a thing pure and simple, i.e. exchange of one specific thing for another of the same kind. [b] purchase or sale (emtio, venditio); exchange of a specific thing for one characterised as universal, one which counts as value alone and which lacks the other specific character, utility - i.e. for ‘money’.
2. Letting (location conductio); alienation of the temporary use of a property in return for rent: [a] letting of a specific thing - letting strictly so called, or [b] letting of a universal thing, so that the lessor remains only the owner of this universal, or in other words of the value - loan (mutuum, or even commodatum, if interest is charged). The additional empirical characteristics of the thing (which may be, e.g., a flat, furniture, a house, res fungibilis or non fungibilis, &c.) entail (as in A. 2 above) other particular though unimportant subdivisions.
3. Contract for wages (locatio operae) - alienation of my productive capacity or my services so far, that is, as these are alienable, the alienation being restricted in time or in some other way (see § 67). Remark: Counsel’s acceptance of a brief is akin to this, and so are other contracts whose fulfilment depends on character, good faith, or superior gifts, and where an incommensurability arises between the service rendered and a value in terms of cash. (In such cases the cash payment is called nor ‘wages’ but ‘honorarium’.)

C. Completion of a contract (cautio) through giving a pledge.

In the contracts whereby I part with the use of a thing, I am no longer in possession of the thing though I am still its owner, as for example when I let a house. Further, in gifts or contracts for exchange or purchase, I may have become the owner of a thing without as yet being in possession of it, and the same cleavage between ownership and possession arises in respect of the implementing of any undertaking which is not simply a cash or barter transaction. Now what the pledge effects is that in the one case I remain, and in the other case I am put, in actual possession of the value as that which is still or has already become my Property, without in either case being in possession of the specific thing which I am renouncing or which is to be mine. The pledge is a specific thing but one which is my property only to the extent of the value of the property which I have renounced into another’s possession or which is due to me; its specific character as a thing and any excess value it may have still belong to the person who gave the pledge. Giving a pledge, is not itself a contract but only a stipulation (see Remark to sect; 77), i.e. it is the moment which brings a contract to completion so far as the possession of the property is concerned. Mortgage and surety are particular forms of pledge. Addition: In contract we drew the distinction between the covenant or stipulation (which made the property mine though it did not give me possession) and performance (which first gave me possession). Now if I am already the out-and-out owner of the property, the object of the pledge is to put me simultaneously in possession of the value of the property and thereby to guarantee the covenant’s performance at the very time the covenant is made. Surety is a particular kind of pledge whereby someone gives his promise or pledges his credit as a guarantee for another’s performance. Here a person fulfils the function which is fulfilled by a mere thing in the case of a pledge proper. § 81 In the bare relation of immediate persons to one another, their wills while implicitly identical, and in contract posited by them as common, are yet particular. Because they are immediate persons, it is a matter of chance whether or not their particular wills actually correspond with the implicit will, although it is only through the former that the latter has its real existence. If the particular will is explicitly at variance with the universal, it assumes a way of looking at things and a volition which are capricious and fortuitous and comes on the scene in opposition to the principle of rightness. This is wrong. Remark: The transition to wrong is made by the logical higher necessity that the moments of the concept — here the principle of rightness or the will as universal, and right in its real existence, which is just the particularity of the will — should be posited as explicitly different, and this happens when the concept is realised abstractly. But this particularity of the will, taken by itself, is arbitrariness and contingency, and in contract I have surrendered these only as arbitrariness in the case of a single thing and not as the arbitrariness and contingency of the will itself. Addition: In contract we had the relation of two wills as a common will. But this identical will is only relatively universal, posited as universal, and so is still opposed to the particular will. In contract, to be sure, making a covenant entails the right to require its performance. But this performance is dependent again on the particular will which qua particular may act in contravention of the principle of rightness. At this point then the negation, which was implicitly present in the principle of the will at the start, comes into view, and this negation is just what wrong is. In general terms, the course of events is that the will is freed from its immediacy and thus there is evoked out of the common will the particularity which then comes on the scene as opposed to the common will. In contract the parties still retain their particular wills; contract therefore is not yet beyond the stage of arbitrariness, with the result that it remains at the mercy of wrong. iii Wrong § 82 In contract the principle of rightness is present as something posited, while its inner universality is there as something common in the arbitrariness and particular will of the parties. This appearance of right, in which right and its essential embodiment, the particular will, correspond immediately, i.e. fortuitously, proceeds in wrong to become a show, an opposition between the principle of rightness and the particular will as that in which right becomes particularised. But the truth of this show is its nullity and the fact that right reasserts itself by negating this negation of itself. In this process the right is mediated by returning into itself out of the negation of itself; thereby it makes itself actual and valid, while at the start it was only implicit and something immediate. Addition: The principle of rightness, the universal will, receives its essential determinate character through the particular will, and so is in relation with something which is inessential. This is the relation of essence to its appearance. Even if the appearance corresponds with the essence, still, looked at from another point of view, it fails to correspond with it, since appearance is the stage of contingency, essence related to the inessential. In wrong, however, appearance proceeds to become a show. A show is a determinate existence inadequate to the essence, the empty disjunction and positing of the essence, so that in both essence and show the distinction of the one from the other is present as sheer difference. The show, therefore, is the falsity which disappears in claiming independent existence; and in the course of the show’s disappearance the essence reveals itself as essence, i.e. as the authority of the show. The essence has negated that which negated it and so is corroborated. Wrong is a show of this kind, and, when it disappears, it acquires the character of something fixed and valid. What is here called the essence is just the principle of rightness, and in contrast with it the particular will annuls itself as a falsity. Hitherto the being of the right has been immediate only, but now it is actual because it returns out of its negation. The actual is the effectual; in its otherness it still holds fast to itself, while anything immediate remains susceptible of negation.

§ 83 When right is something particular and therefore manifold in contrast with its implicit universality and simplicity, it acquires the form of a show. (a) This show of right is implicit or immediate — non-malicious wrong or a civil offence; (b) right is made a show by the agent himself — fraud; (c) the agent makes it a nullity altogether — crime. Addition: Wrong is thus the show of the essence, putting itself as self-subsistent. If the show is only implicit and not explicit also, i.e. if the wrong passes in my eyes as right, the wrong is non-malicious. The show here is a show from the point of view of the right but not from my point of view. The second type of wrong is fraud. Here the wrong is not a show from the point of view of the principle of rightness. The position is that I am making a show to deceive the other party. In fraud the right is in my eyes only a show. In the first case, the wrong was a show from the point of view of the right. In the second case, from my own point of view, from the point of view of wrong, right is only a show. Finally, the third type of wrong is crime. This is wrong both in itself and from my point of view. But here I will the wrong and make no use of even a show of right. I do not intend the other against whom the crime is committed to regard the absolutely wrong as right. The distinction between crime and fraud is that in the latter the form of acting still implies a recognition of the right, and this is just what is lacking in crime.