第 12 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  so。 It is; however; absolutely impossible to give any further proof of
  the categorical imperative implied; just as it is impossible for the
  geometrician to prove by rational syllogisms that in order to
  construct a triangle I must take three lines… so far an analytical
  proposition… of which three lines any two together must be greater
  than the third… a synthetical proposition; and like the former a
  priori。 It is a postulate of the pure reason that we ought to abstract
  from all the sensible conditions of space and time in reference to the
  conception of right; and the theory of the possibility of such
  abstraction from these conditions; without taking away the reality
  of the possession; just constitutes the transcendental deduction of
  the conception of acquisition by contract。 It is quite akin to what
  was presented under the last title; as the theory of acquisition by
  occupation of the external object。
  20。 What is Acquired by Contract。
  But what is that; designated as external; which I acquire by
  contract? As it is only the causality of the active will of another;
  in respect of the performance of something promised to me; I do not
  immediately acquire thereby an external thing; but an act of the
  will in question; whereby a thing is brought under my power so that
  I make it mine。 By the contract; therefore; I acquire the promise of
  another; as distinguished from the thing promised; and yet something
  is thereby added to my having and possession。 I have become the richer
  in possession (locupletior) by the acquisition of an active obligation
  that I can bring to bear upon the freedom and capability of another。
  This my right; however; is only a personal right; valid only to the
  effect of acting upon a particular physical person and specially
  upon the causality of his will; so that he shall perform something for
  me。 It is not a real right upon that moral person; which is identified
  with the idea of the united will of all viewed a priori; and through
  which alone I can acquire a right valid against every possessor of the
  thing。 For; it is in this that all right in a thing consists。
  The transfer or transmission of what is mine to another by contract;
  takes place according to the law of continuity (lex continui)。
  Possession of the object is not interrupted for a moment during this
  act; for; otherwise; I would acquire an object in this state as a
  thing that had no possessor; and it would thus be acquired originally;
  which is contrary to the idea of a contract。 This continuity; however;
  implies that it is not the particular will of either the promiser or
  the acceptor; but their united will in common; that transfers what
  is mine to another。 And hence it is not accomplished in such a
  manner that the promiser first relinquishes (derelinquit) his
  possession for the benefit of another; or renounces his right
  (renunciat); and thereupon the other at the same time enters upon
  it; or conversely。 The transfer (translatio) is therefore an act in
  which the object belongs for a moment at the same time to both; just
  as in the parabolic path of a projectile the object on reaching its
  highest point may be regarded for a moment as at the same time both
  rising and falling; and as thus passing in fact from the ascending
  to the falling motion。
  21。 Acceptance and Delivery。
  A thing is not acquired in a case of contract by the acceptance
  (acceptatio) of the promise; but only by the delivery (traditio) of
  the object promised。 For all promise is relative to performance; and
  if what was promised is a thing; the performance cannot be executed
  otherwise than by an act whereby the acceptor is put by the promiser
  into possession of the thing; and this is delivery。 Before the
  delivery and the reception of the thing; the performance of the act
  required has not yet taken place; the thing has not yet passed from
  the one person to the other and; consequently; has not been acquired
  by that other。 Hence the right arising from a contract is only a
  personal right; and it only becomes a real right by delivery。
  A contract upon which delivery immediately follows (pactum re
  initum) excludes any interval of time between its conclusion and its
  execution; and as such it requires no further particular act in the
  future by which one person may transfer to another what is his。 But if
  there is a time… definite or indefinite… agreed upon between them
  for the delivery; the question then arises whether the thing has
  already before that time become the acceptor's by the contract; so
  that his right is a right in the thing; or whether a further special
  contract regarding the delivery alone must be entered upon; so that
  the right that is acquired by mere acceptance is only a personal
  right; and thus it does not become a right in the thing until
  delivery? That the relation must be determined according to the latter
  alternative will be clear from what follows。
  Suppose I conclude a contract about a thing that I wish to
  acquire… such as a horse… and that I take it immediately into my
  stable; or otherwise into my possession; then it is mine (vi pacti
  re initi); and my right is a right in the thing。 But if I leave it
  in the hands of the seller without arranging with him specially in
  whose physical possession or holding (detentio) this thing shall be
  before my taking possession of it (apprehensio); and consequently;
  before the actual change of possession; the horse is not yet mine; and
  the right which I acquire is only a right against a particular person…
  namely; the seller of the horse… to be put into possession of the
  object (poscendi traditionem) as the subjective condition of any use
  of it at my will。 My right is thus only a personal right to demand
  from the seller the performance of his promise (praestatio) to put
  me into possession of the thing。 Now; if the contract does not contain
  the condition of delivery at the same time… as a pactum re initum… and
  consequently an interval of time intervenes between the conclusion
  of the contract and the taking possession of the object of
  acquisition; I cannot obtain possession of it during this interval
  otherwise than by exercising the particular juridical activity
  called a possessory act (actum possessorium); which constitutes a
  special contract。 This act consists in my saying; 〃I will send to
  fetch the horse;〃 to which the seller has to agree。 For it is not
  self…evident or universally reasonable that any one will take a
  thing destined for the use of another into his charge at his own risk。
  On the contrary; a special contract is necessary for this arrangement;
  according to which the alienator of a thing continues to be its
  owner during a certain definite time; and must bear the risk of
  whatever may happen to it; while the acquirer can only be regarded
  by the seller as the owner when he has delayed to enter into
  possession beyond the date at which he agreed to take delivery。
  Prior to the possessory act; therefore; all that is acquired by the
  contract is only a personal right; and the acceptor can acquire an
  external thing only by delivery。
  SECTION III。 Principles of Personal Right that is Real
  in Kind。 (Jus Realiter Personale)。
  22。 Nature of Personal Right of a Real Kind。
  Personal right of a real kind is the right to the possession of an
  external object as a thing; and to the use of it as a person。 The mine
  and thine embraced under this right relate specially to the family and
  household; and the relations involved are those of free beings in
  reciprocal real interaction with each other。 Through their relations
  and influence as persons upon one another; in accordance with the
  principle of external freedom as the cause of it; they form a
  society composed as a whole of members standing in community with each
  other as persons; and this constitutes the household。 The mode in
  which this social status is acquired by individuals; and the functions
  which prevail within it; proceed neither by arbitrary individual
  action (facto); nor by mere contract (pacto); but by law (lege)。 And
  this law as being not only a right; but also as constituting
  possession in reference to a person; is a right rising above all
  mere real and personal right。 It must; in fact; form the right of
  humanity in our own person; and; as such; it has as its consequence
  a natural permissive law; by the favour of which such acquisition
  becomes possible to us。
  23。 What is acquired in the household。
  The acquisition that is founded upon this law is; as regards its
  objects; threefold。 The man acquires a wife; the husband and wife
  acquire children; constituting a family; and the family acquire
  domestics。 All these objects; while acquirable; are inalienable; and
  the right of possession in these objects is the most strictly personal
  of all rights。
  The Rights of the Family as a Domestic Soc