style="font-size:15px;"> Contract WhatThe mutuall transferring of Right, is that which men call CONTRACT.
There is difference, between transferring of Right to the Thing; and transferring, or tradition, that is, delivery of the Thing it selfe. For the Thing may be delivered together with the Translation of the Right; as in buying and selling with ready mony; or exchange of goods, or lands: and it may be delivered some time after.
Covenant What
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 mean time be trusted; and then the Contract on his part, is called PACT, or COVENANT: Or both parts may contract now, to performe hereafter: in which cases, he that is to performe in time to come, being trusted, his performance is called Keeping Of Promise, or Faith; and the fayling of performance (if it be voluntary) Violation Of Faith.
Free-gift
When the transferring of Right, is not mutuall; 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, FREEGIFT, GRACE: which words signifie one
and the same thing.
Signes Of Contract Expresse
Signes of Contract, are either Expresse, or By Inference. Expresse, are words spoken with understanding of what they signifie; 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.
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Signes Of Contract By Inference
Signes 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 signe by Inference, of any Contract, is whatsoever sufficiently argues the will of the Contractor.
Free Gift Passeth By Words Of The Present Or Past
Words alone, if they be of the time to come, and contain a bare promise, are an insufficient signe of a Free-gift and therefore not obligatory. For if they be of the time to Come, as, To Morrow I Will Give, they are a signe I have not given yet, and consequently that my right is not transferred, but remaineth till I transferre it by some other Act. But if the words be of the time Present, or Past, as, "I have given, or do give to be delivered to morrow," then is my to morrows Right given away to day; and that by the vertue of
the words, though there were no other argument of my will. And there is a great difference in the signification of these words, Volos Hoc Tuum Esse Cras, and Cros Dabo; that is between "I will that this be thine to morrow," and, "I will give it to thee to morrow:" For the word I Will, in the former manner of speech, signifies an act of the will Present; but in the later, it signifies a promise of
an act of the will to Come: and therefore the former words, being of the Present, transferre a future right; the later, that be of the Future, transferre nothing. But if there be other signes of the Will to transferre a Right, besides Words; then, though the gift be Free, yet may the Right be understood to passe 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 runne.
Signes Of Contract Are Words Both Of The Past, Present, and Future In Contracts, the right passeth, not onely where the words are of the time Present, or Past; but also where they are of the Future; because all Contract is mutuall translation, or change of Right; and therefore he that promiseth onely, because he hath already received the benefit for which he promiseth, is to be understood as if he intended the Right should passe: for unlesse 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.
Merit What
He that performeth first in the case of a Contract, is said to MERIT that which he is to receive by the performance of the other; and he hath it as Due. Also when a Prize is propounded to many, which is to be given to him onely that winneth; or mony is thrown amongst many, to be enjoyed by them that catch it; though this be a Free Gift; yet so to Win, or so to Catch, is to Merit, and to
have it as DUE. For the Right is transferred in the Propounding of the Prize, and in throwing down the mony; though it be not determined to whom, but by the Event of the contention. But there is between these two sorts of Merit, this difference, that In Contract, I Merit by vertue of my own power, and the Contractors need; but in this case of Free Gift, I am enabled to Merit onely by the benignity of the Giver; In Contract, I merit at The Contractors hand that hee should depart with his right; In this case of
gift, I Merit not that the giver should part with his right; but that when he has parted with it, it should be mine, rather than anothers. And this I think to be the meaning of that distinction of the Schooles, between Meritum Congrui, and Meritum Condigni. For God Almighty, having promised Paradise to those men (hoodwinkt with carnall desires,) that can walk through this world according to
the Precepts, and Limits prescribed by him; they say, he that shall so walk, shall Merit Paradise Ex Congruo. But because no man can demand a right to it, by his own Righteousnesse, or any other power in himselfe, but by the Free Grace of God onely; they say, no man can Merit Paradise Ex Condigno. This I say, I think is the meaning of that distinction; but because Disputers do not agree upon the signification of their own termes of Art, longer than it serves their turn; I will not affirme any thing of their meaning: onely this
I say; when a gift is given indefinitely, as a prize to be contended for, he that winneth Meriteth, and may claime the Prize as Due.
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Covenants Of Mutuall Trust, When Invalid
If a Covenant be made, wherein neither of the parties performe presently, but trust one another; in the condition of meer Nature, (which is a condition of Warre of every man against every man,) upon any reasonable suspition, it is Voyd; But if there be a com-mon Power set over them bothe, with right and force sufficient to compell performance; it is not Voyd. For he that performeth first, has no assurance the other will performe after; because the bonds of words are too weak to bridle mens ambition, avarice, anger, and other Passions, without the feare of some coerceive Power; which in the condition of meer Nature, where all men are equall, and judges of the justnesse of their own fears cannot possibly be supposed. And therefore he which performeth first, does but betray himselfe to his enemy; contrary to the Right (he can never abandon) of defending his life, and means of living.
But in a civill estate, where there is a Power set up to constrain those that would otherwise violate their faith, that feare is no more
reasonable; and for that cause, he which by the Covenant is to perform first, is obliged so to do.
The cause of Feare, which maketh such a Covenant invalid, must be alwayes something arising after the Covenant made; as some new fact, or other signe of the Will not to performe; else it cannot make the Covenant Voyd. For that which could not hinder a man from promising, ought not to be admitted as a hindrance of performing.
Right To The End, Containeth Right To The Means
