Obligation

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An obligation is a course of action which someone is required to take, be it a legal obligation or a moral obligation. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when there is a choice to do what is morally good and what is morally unacceptable. [1] There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, religious, and possibly in terms of politics, where obligations are requirements which must be fulfilled. These are generally legal obligations, which can incur a penalty for non-fulfilment, although certain people are obliged to carry out certain actions for other reasons as well, whether as a tradition or for social reasons.

Contents

Obligations vary from person to person: for example, a person holding a political office will generally have far more obligations than an average adult citizen, who themselves will have more obligations than a child. [2] Obligations are generally granted in return for an increase in an individual's rights or power.

Other uses

The term obligate can also be used in a biological context, in reference to species which must occupy a certain niche or behave in a certain way in order to survive. In biology, the opposite of obligate is facultative, meaning that a species is able to behave in a certain way and may do so under certain circumstances, but that it can also survive without having to behave this way. For example, species of salamanders in the family Proteidae are obligate paedomorphs, whereas species belonging to the Ambystomatidae are facultative paedomorphs.

In finance, "obligated" refers to funds within authorised budgets which have become legally binding expenditure commitments e.g. through letting a contract. [3]

In the Catholic Church, Holy Days of Obligation or Holidays of Obligation, less commonly called Feasts of Precept, are the days on which, as canon 1247 of the 1983 Code of Canon Law states, the faithful are obliged to participate in the Mass.

Obligation and morality

An obligation is contract between an individual and the thing or person to which or whom they are obligated. If the contract is breached the individual can be subject to blame. When entering into an obligation people generally do not think about the guilt that they would experience if the obligation were not fulfilled; instead they think about how they can fulfil the obligation. Rationalists argue people respond in this way because they have a reason to fulfill the obligation. [4] According to the sanction theory, an obligation corresponds to the social pressures one feels, and is not simply derived from a singular relationship with another person or project. In the rationalist argument, this same pressure adds to the reasons people have, thereby strengthening their desire to fulfill the obligation. The sanction theory states there needs to be a sanction in order for a duty to be a moral duty. [4]

Sociological view versus philosophical view

Sociologists believe that obligations lead people to act in ways that society deems acceptable. Every society has their own way of governing, they expect their citizens to behave in a particular manner. Not only do the citizens have to oblige to the societal norms, they want to, in order to assimilate to society. [5] Some philosophers on the other hand, argue that rational beings have moral duties, they make a choice to either fulfill these moral duties or disregard them. They have a moral responsibility to fulfill their obligations. Duty is seen as the response to an individual's obligations. Obligations require an action being done and duty is the carrying out of this action. [6] Sociologists believe that an obligation is an objective force. Some philosophers however, believe obligations are moral imperatives. [5]

Types

Written

Written obligations are contracts. They legally bind two people into an agreement. Each person becomes responsible for doing their part of the contract. A legal contract, which does not need to be made in writing, [7] consists of an offer, an acceptance of that offer, an intention to bind to one another in a legal agreement and a consideration, something of value to be exchanged. [8]

Political

A political obligation is a requirement for the citizens of a society to follow the laws of that society. [9] There are philosophical issues, however, about whether a citizen should follow a law simply because it is a law. There are various views about whether a political obligation is a moral obligation. John Rawls argues that people do have political obligations because of the principle of fairness. Humanity benefits from the joint effort of the government, so, in fairness, they should be active and supportive members of this effort. [9] There are people, however, such as Robert Nozick, who argue enjoyment of a community effort does not mean obligation to that effort. [9]

Social

Social obligations refer to the things humans as individuals accept because it is collectively accepted. [10] When people agree to a promise or an agreement, they are collectively consenting to its terms. Humanity is obligated to fulfil that promise or agreement. [10]

Primary and secondary

English law distinguishes in some case law between primary and secondary obligations. A "secondary obligation" is a duty which arises in law as a consequence of another, primary, obligation. [11] A person may themselves incur an obligation to perform a secondary obligation, for example, as a result of them breaching their primary obligation, or by another party breaching an obligation which the secondary obligor has guaranteed.

The England and Wales Court of Appeal noted in the case of AB v CD (2014) that

The primary obligation of the party to a contract [is] to perform his contractual obligations. The obligation to pay damages in the event of breach is a secondary obligation. [12] [13]

and in relation to the Statute of Frauds, Lord Justice Maurice Kay commented in 2009 that

A guarantee is, in the words of the Statute, a promise "to answer for the debt default or miscarriage of another person". There must be another person who is primarily liable. The liability of the guarantor is secondary. [14]

The Appeal Court observed in 1973 that the determination of whether a document is a guarantee or an indemnity, or whether it imposes a secondary or a primary liability, will always depend upon "the true construction of the actual words in which the promise is expressed". [15]

Under the Louisiana Civil Code, "stipulated damages" create a secondary obligation for the purpose of enforcing a principal obligation. An aggrieved party may demand either the stipulated damages or the performance of the principal obligation, but may not demand both except for delay. [16]

See also

Related Research Articles

A tort is a civil wrong 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.

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.

<span class="mw-page-title-main">Breach of contract</span> Type of civil wrong in contract law

Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance. Breach occurs when a party to a contract fails to fulfill its obligation(s), whether partially or wholly, as described in the contract, or communicates an intent to fail the obligation or otherwise appears not to be able to perform its obligation under the contract. Where there is breach of contract, the resulting damages have to be paid to the aggrieved party by the party breaching the contract.

<span class="mw-page-title-main">Consideration under American law</span> Concept in common law as applied in the US

Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from doing an act. In broad terms, if one agrees to do something he was not otherwise legally obligated to do, it may be said that he has given consideration. For example, Jack agrees to sell his car to Jill for $100. Jill's payment of $100 is the consideration for Jack's promise to give Jill the car, and Jack's promise to give Jill the car is consideration for Jill's payment of $100.

<span class="mw-page-title-main">Fiduciary</span> Person who holds a legal or ethical relationship of trust

A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for example, a corporate trust company or the trust department of a bank, acts in a fiduciary capacity to another party, who, for example, has entrusted funds to the fiduciary for safekeeping or investment. Likewise, financial advisers, financial planners, and asset managers, including managers of pension plans, endowments, and other tax-exempt assets, are considered fiduciaries under applicable statutes and laws. In a fiduciary relationship, one person, in a position of vulnerability, justifiably vests confidence, good faith, reliance, and trust in another whose aid, advice, or protection is sought in some matter. In such a relation, good conscience requires the fiduciary to act at all times for the sole benefit and interest of the one who trusts.

A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.

Assignment is a legal term used in the context of the laws of contract and of property. In both instances, assignment is the process whereby a person, the assignor, transfers rights or benefits to another, the assignee. An assignment may not transfer a duty, burden or detriment without the express agreement of the assignee. The right or benefit being assigned may be a gift or it may be paid for with a contractual consideration such as money.

Negative and positive rights are rights that oblige either inaction or action. These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.

<span class="mw-page-title-main">Efficient breach</span>

In legal theory, particularly in law and economics, efficient breach is a voluntary breach of contract and payment of damages by a party who concludes that they would incur greater economic loss by performing under the contract.

<span class="mw-page-title-main">Good faith (law)</span> Implied covenant of honesty and fair dealing in contract law

In contract law, the implied covenant of good faith and fair dealing is a general presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in a number of contract types in order to reinforce the express covenants or promises of the contract.

<span class="mw-page-title-main">Canadian contract law</span> Overview of contract law in Canada

Canadian contract law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian contract law is derived from English contract law, though it has developed distinctly since Canadian Confederation in 1867. While Québecois contract law was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of contract law as part of its provisions on the broader law of obligations. Individual common law provinces have codified certain contractual rules in a Sale of Goods Act, resembling equivalent statutes elsewhere in the Commonwealth. As most aspects of contract law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, contract law may differ even between the country's common law provinces and territories. Conversely; as the law regarding bills of exchange and promissory notes, trade and commerce, maritime law, and banking among other related areas is governed by federal law under Section 91 of the Constitution Act, 1867; aspects of contract law pertaining to these topics are harmonised between Québec and the common law provinces.

<span class="mw-page-title-main">Consideration</span> Concept in the common law of contracts

Consideration is a concept of English common law and is a necessity for simple contracts but not for special contracts. The concept has been adopted by other common law jurisdictions.

An executory contract is a contract that has not yet been fully performed or fully executed. It is a contract in which both sides still have important performance remaining. However, an obligation to pay money, even if such obligation is material, does not usually make a contract executory. An obligation is material if a breach of contract would result from the failure to satisfy the obligation. A contract that has been fully performed by one party but not by the other party is not an executory contract. See, generally, Countryman, Vern, "Executory Contracts in Bankruptcy: Part I" (1973). Minnesota Law Review. 2459. https://scholarship.law.umn.edu/mlr/2459 and "Executory Contracts in Bankruptcy: Part II" (1974). Minnesota Law Review. 2460.https://scholarship.law.umn.edu/mlr/2460.

<span class="mw-page-title-main">Contractual term</span> Any provision forming part of a contract

A contractual term is "any provision forming part of a contract". Each term gives rise to a contractual obligation, the breach of which may give rise to litigation. Not all terms are stated expressly and some terms carry less legal gravity as they are peripheral to the objectives of the contract.

When creating a contract, a negotiator is not only doing so to reach an agreement between two or more parties, but to create an agreement that is durable; whereby parties of the contract are legally bound and committed to its promises. A legally binding contract is defined as an exchange of promises or an agreement between parties that the law will enforce, and there is an underlying presumption for commercial agreements that parties intend to be legally bound.

<span class="mw-page-title-main">English contract law</span> Law of contracts in England and Wales

English contract law is the body of law that regulates legally binding agreements in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the Industrial Revolution, it shares a heritage with countries across the Commonwealth, from membership in the European Union, continuing membership in Unidroit, and to a lesser extent the United States. Any agreement that is enforceable in court is a contract. A contract is a voluntary obligation, contrasting to the duty to not violate others rights in tort or unjust enrichment. English law places a high value on ensuring people have truly consented to the deals that bind them in court, so long as they comply with statutory and human rights.

<span class="mw-page-title-main">Contract</span> Legally binding document establishing rights and duties between parties

A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties. A contract typically involves consent to transfer of goods, services, money, or promise to transfer any of those at a future date. The activities and intentions of the parties entering into a contract may be referred to as contracting. In the event of a breach of contract, the injured party may seek judicial remedies such as damages or equitable remedies such as specific performance or rescission. A binding agreement between actors in international law is known as a treaty.

Contractual terms in English law is a topic which deals with four main issues.

<span class="mw-page-title-main">United States contract law</span>

Contract law regulates the obligations established by agreement, whether express or implied, between private parties in the United States. The law of contracts varies from state to state; there is nationwide federal contract law in certain areas, such as contracts entered into pursuant to Federal Reclamation Law.

<span class="mw-page-title-main">South African contract law</span> Law about agreements between two or more parties

South African contract law is "essentially a modernized version of the Roman-Dutch law of contract", and is rooted in canon and Roman laws. In the broadest definition, a contract is an agreement two or more parties enter into with the serious intention of creating a legal obligation. Contract law provides a legal framework within which persons can transact business and exchange resources, secure in the knowledge that the law will uphold their agreements and, if necessary, enforce them. The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing.

In Bulgaria, the law of obligations is set out by the Obligations and Contracts Act (OCA). According to article 20a, OCA contracts shall have the force of law for the parties that conclude them.

References

  1. ↑ Ross, Ralph (1970). Obligation, a social theory . Ann Arbor: The University of Michigan Press. ISBN   0472087657.
  2. ↑ Old Bear, Sacred Journey of the Medicine Wheel (2008), p. 393: "Adults have more obligations and are held to higher standards of accountability than children are".
  3. ↑ Congressional Budget Office, Common Budgetary Terms Explained, published December 2021, accessed 30 November 2023
  4. 1 2 Owens, David (2012-09-20). Obligation. Oxford University Press. doi:10.1093/acprof:oso/9780199691500.001.0001. ISBN   9780191744938.
  5. 1 2 Ogien, Albert (2016-12-01). "Obligation and Impersonality: Wittgenstein and the Nature of the Social". Philosophy of the Social Sciences. 46 (6): 604–623. doi:10.1177/0048393116649970. ISSN   0048-3931. S2CID   147711448.
  6. ↑ Korsgaard, Christine (July 1989). "Kant's Analysis of Obligation: The Argument of Foundations". The Monist. 72: 311–340. doi:10.5840/monist198972317.
  7. ↑ Ramesh, A., Do Contracts Have to Be In Writing?, published 20 June 2019, accessed 9 August 2023
  8. ↑ "Contracts and agreements | Small Business". www.smallbusiness.wa.gov.au. Retrieved 2019-11-27.
  9. 1 2 3 Song, Edward (2012). "Acceptance, Fairness, and Political Obligation". Legal Theory. 18 (2): 209–229. doi:10.1017/S1352325212000067. S2CID   145252321.
  10. 1 2 Miller, Kaarlo (2006-06-01). "Social obligation as reason for action". Cognitive Systems Research. Cognition, Joint Action and Collective Intentionality. 7 (2): 273–285. doi:10.1016/j.cogsys.2005.11.005. ISSN   1389-0417. S2CID   3449678.
  11. ↑ The Law Dictionary, SECONDARY OBLIGATION Definition & Legal Meaning, accessed 18 February 2023
  12. ↑ Blake, N., Court of Appeal decision means injunction to prevent breach may be more readily obtained where damages limited by contract, Herbert Smith Freehills: Litigation Notes, published 11 March 2014, accessed 7 February 2023
  13. ↑ England and Wales Court of Appeal (Civil Division), AB v CD (2014) EWCA Civ 229, paragraph 22, published 6 March 2014, accessed 2 February 2023
  14. ↑ England and Wales Court of Appeal (Civil Division), Associated British Ports v Ferryways NV & Anor, EWCA Civ 189, 18 March 2009, accessed 18 February 2023
  15. ↑ Swarbrick, D., Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services: HL 1973, updated 6 May 2022, accessed 18 February 2023
  16. ↑ Louisiana Civil Code, Article 2007, accessed 23 June 2015
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