43. The former class of duties he illustrates with much prolixity and needless quotation,[906] and passes to the right of self-defence, which seems to be the debatable frontier between the two classes of obligation. In this chapter Puffendorf is free from the extreme scrupulousness of Grotius; yet he differs from him, as well as from Barbeyrac and Locke, in denying the right of attacking the aggressor, where a stranger has been injured, unless where we are bound to him by promise.[907]
[906] C. 4.
[907] C. 5.
44. All persons, as is evident, are bound to repair wilful injury, and even that arising from their neglect; but not where they have not been in fault.[908] Yet the civil action ob pauperiem, for casual damage by a beast or slave, which Grotius held to be merely of positive law, and which our own (in the only applicable case) does not recognise, Puffendorf thinks grounded on natural right. He considers several questions of reparation, chiefly such as we find in Grotius. From these, after some intermediate disquisitions on moral duties, he comes to the more extensive province of casuistry, the obligation of promises.[909] These, for the most part, give perfect rights which may be enforced, though this is not universal; hence, promises may themselves be called imperfect or perfect. The former, or nuda pacta, seem to be obligatory rather by the rules of veracity, and for the sake of maintaining confidence among men, than in strict justice; yet he endeavours to refute the opinion of a jurist who held nuda pacta to involve no obligation beyond a compensation for damage. Free consent and knowledge of the whole subject are required for the validity of a promise; hence, drunkenness takes away its obligation.[910] Whether a minor is bound in conscience, though not in law, has been disputed; the Romish casuists all denying it unless he has received an advantage. La Placette, it seems, after the time of Puffendorf, though a very rigid moralist, confines the obligation to cases where the other party sustains any real damage by the non-performance. The world, in some instances, at least, would exact more than the strictest casuists. Promises were invalidated, though not always mutual contracts, by error; and fraud in the other party annuls a contract. There can be no obligation, Puffendorf maintains, without a corresponding right; hence, fear arising from the fault of the other party invalidates a promise. But those made to pirates or rebels, not being extorted by fear, are binding. Vows to God he deems not binding, unless accepted by him; but he thinks that we may presume their acceptance when they serve to define or specify an indeterminate duty.[911] Unlawful promises must not be performed by the party promising to commit an evil act, and as to performance of the other party’s promise, he differs from Grotius in thinking it not binding. Barbeyrac concurs with Puffendorf, but Paley holds the contrary; and the common sentiments of mankind seem to be on that side.[912]
[908] L. iii., c. 1.
[909] C. 5.
[910] C. 6.
[911] C. 6.
[912] C. 7.
45. The obligations of veracity Puffendorf, after much needless prolixity on the nature of signs and words, deduces from a tacit contract among mankind, that words, or signs of intention, shall be used in a definite sense which others may understand.[913] He is rather fond of these imaginary compacts. The laxer casuists are in nothing more distinguishable from the more rigid than in the exceptions they allow to the general rule of veracity. Many, like Augustin and most of the fathers, have laid it down that all falsehood is unlawful; even some of the jurists, when treating of morality, had done the same. But Puffendorf gives considerable latitude to deviations from truth, by mental reserve, by ambiguous words, by direct falsehood. Barbeyrac, in a long note, goes a good deal farther, and indeed beyond any safe limit.[914] An oath, according to those writers, adds no peculiar obligation; another remarkable discrepancy between their system and that of the theological casuists. Oaths may be released by the party in favour of whom they are made; but it is necessary to observe whether the dispensing authority is really the obligee.