Law of obligations

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The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights and duties are referred to as obligations, and this area of law deals with their creation, effects and extinction.

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An obligation is a legal bond (vinculum iuris) by which one or more parties (obligants) are bound to act or refrain from acting. An obligation thus imposes on the obligor a duty to perform, and simultaneously creates a corresponding right to demand performance by the obligee to whom performance is to be tendered.

History

The word originally derives from the Latin "obligare" which comes from the root "lig" which suggests being bound, as one is to God for instance in "re-ligio". [1] This term first appears in Plautus' play Truculentus at line 214.

Obligations did not originally form part of Roman Law, which mostly concerned issues of succession, property, and family relationships. It developed as a solution to a gap in the system, when one party committed a wrong against another party. These situations were originally governed by a basic customary law of revenge. [2] This undesirable situation eventually developed into a system of liability where people were at first encouraged and then essentially forced to accept monetary compensation from the wrongdoer or their family instead of seeking vengeance. This signaled an important shift in the law away from vengeance and towards compensation. The state supported this effort by standardizing amounts for certain wrongs. Thus the earliest form of Obligation law derives out of what we would today call Delict. [3]

However, liability in this form did not yet include the idea that the debtor "owed" monetary compensation to the creditor, it was merely a means of avoiding punishment. If the debtor or his family didn't have the means to pay then the old rules still applied as outlined in the Twelve Tables , specifically Table III. [4] This section, despite how harsh it may appear to us, was originally developed as a means to protect debtors from the excessive abuses of creditors. [5]

Definition

Justinian first defines an obligation (obligatio) [6] in his Institutes , Book 3, section 13 as "a legal bond, with which we are bound by necessity of performing some act according to the laws of our State." [7] He further separates the law of obligations into contracts, delicts, quasi-contracts, and quasi-delicts.

Nowadays, obligation, as applied under civilian law, means a legal tie (vinculum iuris) by which one or more parties (obligants) are bound to perform or refrain from performing specified conduct (prestation). [8] Thus an obligation encompasses both sides of the equation, both the obligor's duty to render prestation and the obligee's right to receive prestation. It differs from the common-law concept of obligation which only encompasses the duty aspect.

Every obligation has four essential requisites otherwise known as the elements of obligation. They are:

  1. the obligor: obligant duty-bound to fulfill the obligation; he who has a duty.
  2. the obligee: obligant entitled to demand the fulfillment of the obligation; he who has a right.
  3. the subject matter, the prestation: the performance to be tendered.
  4. a legal bond, the vinculum juris: the cause that binds or connects the obligants to the prestation.

Classification in Roman Law

Sources

Obligations arising out of the will of the parties are called voluntary, and those imposed by operation of law are called involuntary. Sometimes these are called conventional and obediential. The events giving rise to obligations may be further distinguished into specified categories.

One of the first known classifications was made by Gaius in his Institutes , who divided obligations into obligations ex contractu (obligations arising from legal actions) and obligations ex delicto (obligations arising from illegal, unlawful actions). However, since this classification was too vague, in his work Res cottidinanae Gaius classified all obligations into the aforementioned obligations ex contractu and obligations ex delicto, as well as obligations ex variis causarum figuris, which was a heterogeneous category that was supposed to include all the cases of obligations not arising from delicts or contracts.

The most precise Roman classification of obligations was featured in Justinian's Institutes (not to be confused by Gaius' Institutes), which classified them as obligations arising from contracts (ex contractu), those arising from delicts (ex maleficio), those arising from quasi-contracts (quasi ex contractu), and those arising from quasi-delicts (quasi ex maleficio). [9]

Contracts

A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified contracts into four categories which are: contracts consensu , verbal contracts, contracts re , and contracts litteris . But this classification cannot cover all the contracts, such as pacts and innominate contracts; thus, it is no longer used. According to many modern legal scholars, the most important classification of contracts is that of contracts consensu, which only require the consent of wills to create obligations, and formal contracts, which have to be concluded in a specific form in order to be valid (for example, in many European countries a contract regulating the purchase of real estate must be concluded in a special written form that is validated by a public notary). [10]

Delicts

Quasi-contracts

Quasi-contracts are supposed to be sources of obligations very similar to contracts, but the main difference is that they are not created by an agreement of wills. The main cases are negotiorum gestio (conducting of another person's affairs without their authorization), unjust enrichment, and solutio indebiti. [11] This Roman classification is quite controversial for today's standards, since many of these cases would be considered as completely different from contracts (most notably unjust enrichment), and would instead be classified as delicts or special sources of obligations. They are formed by implication from circumstances regardless of the assent or dissent of parties. They are called quasi-contracts. The following are the examples of quasi-contractual obligations under the Roman law;

Quasi-delicts

The designation comprised a group of actions that are very similar to delicts, but lacking one of key elements of delicts. It includes res suspensae, responsibility for things poured or thrown out of buildings, responsibility of shippers/innkeepers/stablekeepers, and erring judges. For example, the responsibility of inn keepers creates obligations when certain things left by guests in the lodging are destroyed, damaged or lost by the innkeeper's assistants or employees. In this case, the innkeeper is responsible for the damages to the guest's property, even though he did not cause them personally. [12]

Subject matter

Obligations are classified according to the nature of the performance (prestation):

See also

Related Research Articles

A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

A quasi-contract is a fictional contract recognised by a court. The notion of a quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems. Quasi contract laws have been deduced from the Latin statement "Nemo debet locupletari ex aliena iactura", which proclaims that no one should grow rich out of another person's loss. It was one of the central doctrines of Roman law.

Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages, restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability for restitution is primarily governed by the "principle of unjust enrichment": A person who has been unjustly enriched at the expense of another is required to make restitution.

In finance, a surety, surety bond, or guaranty involves a promise by one party to assume responsibility for the debt obligation of a borrower if that borrower defaults. Usually, a surety bond or surety is a promise by a surety or guarantor to pay one party a certain amount if a second party fails to meet some obligation, such as fulfilling the terms of a contract. The surety bond protects the obligee against losses resulting from the principal's failure to meet the obligation. The person or company providing the promise is also known as a "surety" or as a "guarantor".

<span class="mw-page-title-main">Delict (Scots law)</span> Actionable civil wrongs in Scots law

Delict in Scots law is the area of law concerned with those civil wrongs which are actionable before the Scottish courts. The Scots use of the term 'delict' is consistent with the jurisdiction's connection with Civilian jurisprudence; Scots private law has a 'mixed' character, blending together elements borrowed from Civil law and Common law, as well as indigenous Scottish developments. The term tort law, or 'law of torts', is used in Anglo-American jurisdictions to describe the area of law in those systems. Unlike in a system of torts, the Scots law of delict operates on broad principles of liability for wrongdoing: 'there is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances'. While some terms such as assault and defamation are used in systems of tort law, their technical meanings differ in Scottish delict.

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<span class="mw-page-title-main">Novation</span> Legal concept of substituting a new contract in place of an old one

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References

Citations

  1. ↑ Zimmermann 1996, p. 1.
  2. ↑ see for example: Exodus 21.23-25
  3. ↑ Zimmermann 1996, pp. 2–3.
  4. ↑ XII tables, specifically Table III "Debt"
  5. ↑ Zimmermann 1996, p. 3.
  6. ↑ Albanese, Bernardo. "Papimano e la definizione di obligatio in J, 3, 13, pr." (1984) 50 SDHI 166 sqq.
  7. ↑ Justinian. "Institute." Trans. John B. Moyle. (Oxford: Oxford University Press. 1889) at 132
  8. ↑ J.-L. Baudouin, P.-G. Jobin, & N. Vézina, Les Obligations, 6th edn. (Cowansville: Yvon Blais, 2005), 19.
  9. ↑ Bujuklić, Žika (2015). Rimsko privatno pravo. Pravni fakultet Univerziteta u Beogradu. pp. 350–351. ISBN   978-86-7630-579-7.
  10. ↑ Perović, Slobodan (1980). Obligaciono pravo. Privredna štampa.
  11. ↑ Bujuklić, Žika (2015). Rimsko privatno pravo. Pravni fakultet Univerziteta u Beogradu. p. 425. ISBN   978-86-7630-579-7.
  12. ↑ Bujuklić, Žika (2015). Rimsko privatno pravo. Pravni fakultet Univerziteta u Beogradu. pp. 430–432. ISBN   978-86-7630-579-7.
  13. ↑ "Legal definition of Real obligation". legal-glossary.org. 9 March 2014. Retrieved 2014-03-09.
  14. ↑ "Gifts and Nations: The Obligation to Give, Receive[sic], and Repay".
  15. 1 2 "Laws on Obligation and Contracts - Contract Law Essays". 30 May 2020.

Sources

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