On Contracts (Part Two)

Given that all human action and interaction involves either “gratuitous” acts which require no “requital” or is part of a “traffic of exchange” which requires the alignment of interests and the mutual fulfillment of obligations and duties, it follows that contracts and covenants are both manifest and implicit in virtually every aspect of human life. One should also note that an offer from one person or party to another person or party to create or forge a contract also has to be accepted, rejected, or met with a counteroffer by the recipient of the offer within a reasonable timeframe. An offer to create a contract from the offering party to a recipient party cannot remain frozen and hanging forever due to a recipient who wants to keep the offer frozen and hanging as part of a multitude of options while exploring other offers. Thus, if an offer is not met with acceptance, rejection, or a counteroffer within a reasonable period of time, an offer can be withdrawn and can be taken elsewhere. 

By nature, and as mentioned before, a contract or “covenant” has to have a reciprocal or mutual benefit or “mutual consideration” between the contracting parties in order to be enforceable, legitimate, and valid. As Thomas Hobbes wrote: “Whensoever a man transferreth his Right, or Renounceth it; it is either in consideration of some Right reciprocally transferred to himself; or for some other good he hoped for thereby. For it is a voluntary act: and of the voluntary acts of every man, the object is some Good to himself.” Promises, according to Hobbes, are “equivalent” to a contract or covenant and are thus “obligatory.” 

In a “state of nature” that is void of contracts and mutual association and cooperation between men, men must hinder one another from the benefits of natural liberties and rights which they themselves seek to benefit from. Hence, by nature, a contract or a covenant which preserves the peace and aims towards self-preservation as well as some sort of good for oneself has mutual benefit, mutual obligation, and reciprocity as its innate and inherent characteristics and features. As Hobbes wrote: “To lay down a man’s right to anything, is to devest himself of the liberty, of hindering another of the benefit of his own right to the same.” 

Hugo Grotius wrote: “In all contracts, natural justice requires that there should be an equality of terms: insomuch that the aggrieved party has an action against the other for overreaching him. This equality consists partly in the performance, and partly in the profits of the contract, applying to all the previous arrangements, and to the essential consequences of the agreement.” Contracts or covenants which are made in a state of fear and war with an enemy are also binding and obligatory, as Hobbes argued. 

Hence, even though men give up the absolute liberty of a ‘state of nature’ in order to forge a “social contract” and common association between one another with common aims and goals, such a “social contract” and such mutual association aim at the retention of certain liberties and rights. Ultimately, one gives up something in order to keep something. Corruption and the degeneration of a government or state is a sign that those liberties and rights which are to be retained by the people despite their sacrifice of absolute liberty and in turn their subjection to a government and state are being taken away. The true test of a body politic, as Rousseau argued, is if the laws and precedents of antiquity survive the degeneration of the government and state. 

Rousseau argued that the corruption and degeneration of a body politic and the state which is formed out of a body politic begin at the very moment of their conception. But the body politic can survive the degeneration of the state so long as the laws and precedents of antiquity which belong to the body politic are preserved through legislative power, despite the “paralysis” of the executive branch. The failure of the legislative power to preserve the laws and precedents of antiquity in the event of the corruption, degeneration, and “paralysis” of the executive branch leads to either despotism or tyranny, as Rousseau noted. 

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