The Gift

Mauss attempts to ground his theories on gift giving by referring to ancient systems of laws and ancient economies. In doing so, it is his intention to establish a connection between his own observances of Northwest Coast American Indians, Melanesians, and Polynesia customs and traditions. As a result, it is the Roman nexum, classical Hindu laws, and Germanic laws surrounding gifts where he draws comparisons from to support his research.

According to Mauss, it was the Romans and Greeks who invented the distinction between personal and real law. This was done specifically to separate what is sold versus what is gifted. This had the effect of “isolating the moral obligation and contract, and in particular, conceived the difference that exists between rites, laws, and interests” (69). In this way, Mauss sees the Romans as having evolved beyond what he terms as primitive modes of exchange and commerce. Although he does recognize the complexity of the potlatch and gift giving.

Thus, in ancient Rome, The Roman nexum consisted of “five witnesses […] and the ‘weigher’ [arbitrator] (62). The latter of which would work to help identify and create distinctions between what was familia (e.g., personal belongings) and pecunia (e.g., cattle that could be purchased for money). The latter also included a distinction between the res mancipi (business property) and the res nec mancipi (personal property) (63). Mauss adds, “as regards the former, which are made up of precious things, including immovable goods and even children, no disposal of them could take place save according to the precepts of the mancipatio (bondage), the ‘taking (capere) in hand (manu)’” (63-64).

By accipiens (accepting) a terms of contract, the item being purchased remained that of the family’s until said time which it is paid for in full (64). A simple example of this is purchasing a new vehicle today by way of a bank loan. It is true that the vehicle is registered and insured under your name. However, it is also true that under the terms of your bank loan, you will be expected to repay the bank with interest. Failure to make your loan payments will result in your bank seizing your vehicle. Thus, until the loan is completely paid back in full, your car is as much the bank’s as it is technically yours.

Mauss continues by illustrating how there is an inherent difference between emere (buying), furtum (theft), and re (contracts or gifts) (65, 68). Thus, the aeterna auctoritas (eternal authority) of the re constitute four of the most important legal contracts: borrowing, deposit, pledge, and commodate (65). This entails a degree of control over the recipient of a gift or purchasing an item as the res (thing) is understood as having power over the recipient; “(1) the individual possessed by the thing; (2) the individual involved in the matter caused by the traditio [(tradition)] of the thing; (3) finally, the guilty one and the one responsible” (67). Thus, the object in question is imbued with the essence of the original owner.

It is preferable to “Emere quod nunc est mercari antiqui accipiebant pro sumere” (68) (roughly translated: to buy something now instead of borrowing) than it is to be indebted indefinitely to the owner of said res (thing). This saying is particularly foretelling as Western societies like Canada and the United States have some of the highest credit card debt in the world. Nevertheless, these ancient contracts, as it were, are similar to those found in Indigenous groups where the potlatch acts as a form of social contract obligating the recipients to reciprocate within a reasonable time frame.