8. If any man convey some part of his right to another, and doth not this for some certain benefit received, or for some compact, a conveyance in this kind is called a gift or free donation. But in free donation, those words only oblige us, which signify the present or the time past; for if they respect the future, they oblige not as words, for the reason given in the foregoing article. It must needs therefore be, that the obligation arise from some other tokens of the will. But, because whatsoever is voluntarily done, is done for some good to him that wills it; there can no other token be assigned of the will to give it, except some benefit either already received, or to be acquired. But it is supposed that no such benefit is acquired, nor any compact in being; for if so, it would cease to be a free gift. It remains therefore, that a mutual good turn without agreement be expected. But no sign can be given, that he, who used future words toward him who was in no sort engaged to return a benefit, should desire to have his words so understood as to oblige himself thereby. Nor is it suitable to reason, that those who are easily inclined to do well to others, should be obliged by every promise, testifying their present good affection. And for this cause, a promiser in this kind must be understood to have time to deliberate, and power to change that affection, as well as he to whom he made that promise, may alter his desert. But he that deliberates, is so far forth free, nor can be said to have already given. But if he promise often, and yet give seldom, he ought to be condemned of levity, and be called not a donor, but doson.
The definition of contract and covenant.
9. But the act of two, or more, mutually conveying their rights, is called a contract. But in every contract, either both parties instantly perform what they contract for, insomuch as there is no trust had from either to other; or the one performs, the other is trusted; or neither perform. Where both parties perform presently, there the contract is ended as soon as it is performed. But where there is credit given, either to one or both, there the party trusted promiseth after-performance; and this kind of promise is called a covenant.
In covenants, we pass away our rights by words signifying the future.
10. But the covenant made by the party trusted with him who hath already performed, although the promise be made by words pointing at the future, doth no less transfer the right of future time, than if it had been made by words signifying the present or time past. For the other’s performance is a most manifest sign that he so understood the speech of him whom he trusted, as that he would certainly make performance also at the appointed time; and by this sign the party trusted knew himself to be thus understood; which because he hindered not, was an evident token of his will to perform. The promises therefore which are made for some benefit received, which are also covenants, are tokens of the will; that is, as in the foregoing section hath been declared, of the last act of deliberating, whereby the liberty of non-performance is abolished, and by consequence are obligatory. For where liberty ceaseth, there beginneth obligation.
Covenants, in the state of nature, are in vain and of none effect: not so in civil government.
11. But the covenants which are made in contract of mutual trust, neither party performing out of hand, if there arise[[5]] a just suspicion in either of them, are in the state of nature invalid. For he that first performs, by reason of the wicked disposition of the greatest part of men studying their own advantage either by right or wrong, exposeth himself to the perverse will of him with whom he hath contracted. For it suits not with reason, that any man should perform first, if it be not likely that the other will make good his promise after; which, whether it be probable or not, he that doubts it must be judge of, as hath been showed in the foregoing chapter in the ninth article. Thus, I say, things stand in the state of nature. But in a civil state, when there is a power which can compel both parties, he that hath contracted to perform first, must first perform; because, that since the other may be compelled, the cause which made him fear the other’s non-performance, ceaseth.
That no man can make compacts with beasts; neither with God, without revelation.
12. But from this reason, that in all free gifts and compacts there is an acceptance of the conveyance of right required: it follows that no man can compact with him who doth not declare his acceptance. And therefore we cannot compact with beasts, neither can we give or take from them any manner of right, by reason of their want of speech and understanding. Neither can any man covenant with God, or be obliged to him by vow; except so far forth as it appears to him by Holy Scriptures, that he hath substituted certain men who have authority to accept of such-like vows and covenants, as being in God’s stead.
Nor yet vow to God.