The Concept of Obligations in Law
Law of obligations:
Introduction and
concept of
obligation
Paul’s definition:
”The essence of the obligation is not
make some things or servitudes
ours but to enforce second party to
gives us something or to provide
us with service”
Justinian's definition:
"The obligation is a legal bond that
compels us to provide certain things
according to the laws of our country."
Development of obligation:
* initial source of obligation:
damages done to estate of another
pater familias
* development of contracts due to
need to use someone else estate
Obligation as a legal relationship:
The obligation (obligatio) is a legal
relationship between two parties, one
of which is a creditor (creditor) and the
other debtor (debitor).
Obligation is build on the principle of
equality of contracting parties, which
means that creditor has no power over
debtor.
Obligation was not only a legal
relationship, but was also treated as
property (part of res incorporales –
immaterial property) which can be
subject of businnes transactions
.
Obligation and actio (suit)
In
R
oman law obligation was strictly
bonded to specific suit – without suit
obligation wasn’t enforceable.
New obligations was created by adding
judicial provisions to new types of
agreements.
Relations not covered by any
actio
could
be subject of granting special provision
by pretor.
Pretor could grant
actio in factum
– suit
build on facts that were foundation of
parties relationship.
Origin of obligation
in the Law of Twelve Tables
I.
Contracts
II.
Torts
Origin of obligation
in Gaius’s
Res cottidianae
I.
Contracts
II.
Torts
III.
Various types of causes.
Origin of obligation
in
Corpus Iuris Civilis
I.
Contracts
II.
Torts
III.
Obligation arising from situation that
resembles contract (
quasi ex
contractu
)
IV.
Obligation arising from illict act not
qualified as delict (
quasi ex delictu
)
D
e
v
e
l
o
p
m
e
n
t
o
f
c
o
n
t
r
a
c
t
u
a
l
o
b
l
i
g
a
t
i
o
n
*
numerus clausus
of contracts in archaic
roman law
* rise of unnamed contracts - enforceable if
one of the parties performed their duties
* liberalization of formalities in case of oral
contract of stipulation
* genesis of
pacta sunt servanda
principle:
„Pacta quantumcunque nuda servanda” -
All „naked” contracts should be protected
(Decretals of Gregory IX)
C
i
v
i
l
o
b
l
i
g
a
t
i
o
n
s
Where enforceable by law, which means:
1.
They could be a subject of civil litigation
2.
They were legal foundation of executing
one’s rights
Natural obligations
Contrary to civil obligations they weren’t
enforceable by law, which means they
weren’t protected by suit and weren’t
basis for execution
.
N
a
t
u
r
a
l
o
b
l
i
g
a
t
i
o
n
s
This type of obligation was usually effect of
contracts made by:
•
Slaves
•
Persons under
patria potestas
•
Persons under tutelage (minor and women)
•
Persons that had
changed
their legal status
N
a
t
u
r
a
l
o
b
l
i
g
a
t
i
o
n
s
This type of obligation had certain legal effects:
*
Fulfillment of this obligation is performing of
legal duty
*
They can be strengthen by pledge
*
Person that provided
peculium
could cover his
expenses based on that type of obligation in first
place before other creditors
U
n
i
l
a
t
e
r
l
y
b
i
d
d
i
n
g
c
o
n
t
r
a
c
t
s
This type of obligation had very simple
structure: only one party was a creditor
and only one was a debtor.
In civil litigation only creditor possesed a
suit.
Usually it was actio
stricti iuris
.
Example: contract of loan
B
i
l
a
t
e
r
a
l
l
y
b
i
d
i
n
g
c
o
n
t
r
a
c
t
s
(
p
e
r
f
e
c
t
)
*
both sides were creditors and debtors to
each other
*
both sides possessed
actiones
to exercise their
rights in the civil litigation
*
principle of equivalence of provisions
B
i
l
a
t
e
r
a
l
l
y
b
i
d
i
n
g
c
o
n
t
r
a
c
t
s
(
i
m
p
e
r
f
e
c
t
)
*
at the start they looked like unilaterally binding
obligations
*
in some causes another obligation bond within
the same contract and between the same parties
could arise - for example in case of damages
caused by the object of deposit in the estate of
depositary
*
this second obligation had opposite directions -
debtor of primary obligation become creditor and
vice versa
S
t
r
i
c
t
i
i
u
r
i
s
o
b
l
i
g
a
t
i
o
n
s
*
oldest and simplest type of obligations
*
upon evaluation judge didn’t considered
parties performance after conclusion of
contract but examined initial party agreements
B
o
n
a
e
f
i
d
e
i
o
b
l
i
g
a
t
i
o
n
s
*
judge could take into account various
aspects of contractual relationship - such
as
pacta adiecta
, interest or estate
revenue
*
judge could award compensation to one
party due to other party performance
J
o
i
n
t
o
b
l
i
g
a
t
i
o
n
(
j
o
i
n
t
l
i
a
b
i
l
i
t
y
)
*
despite the fact that there are multiple debtors or
creditors there was only one debt to fulfill
*
in case of one debtor who fulfill whole debt in name
of the others was created grounds for recourse claims
Subject of obligation
Subject of obligation
in a one of the
following forms
:
•
dare -
to give
something to
someone
•
facere -
to provide
someone with
service
s
•
praestare -
to restrain ourselves from
doing something
or a guarantee
obligation
Subject of obligation
Claim need to be:
* possible to implement
* in accordance with the law
* in accordance with the morality
* sufficiently precise
* economically valuable
Clauses that could modified content
of the agreement:
*
rebus sic stantibus clause
* good faith (
bonae fidei
) clause
* good practice (
boni mores
) clause
S
u
b
j
e
c
t
o
f
o
b
l
i
g
a
t
i
o
n
Debt could be describe in
a
specific or general
terms which had diffe
re
nt effects:
*
when subject of obligation was specific item in
case of it’s loss the risk was borne by creditor
*
when subject of obligation was describe as a
item which hade some defined parameters it
was always possible (in case of loss or
damage) to provide creditor with new item
I
m
p
o
s
s
i
b
i
l
i
t
y
o
f
c
l
a
i
m
*
Impossibilium nulla obligatio
as a
principle
* Impossibility after agreement:
- case of
vis maior
- case of one’s party fault
A
l
t
e
r
n
a
t
i
v
e
o
b
l
i
g
a
t
i
o
n
(
O
b
l
i
g
a
t
i
o
a
l
t
e
r
n
a
t
i
v
a
)
Duae res sunt in obligatione, una in solutione -
Two claims in obligation, one in solution
A
l
t
e
r
n
a
t
i
v
e
a
u
t
h
o
r
i
z
a
t
i
o
n
(
F
a
c
u
l
t
a
s
a
l
t
e
r
n
a
t
i
v
a
)
Una res est in obligatione, duae in solutione -
One
claim in obligation, two in solution
D
e
l
a
y
(
m
o
r
a
)
* situation when obligation wasn’t fulfilled in
timely manner
* in case of obligation without specific due
date summon was required
* in case of obligation with specific due data
expiration of this period was sufficient
* in case of obligation arisen from
a tort
debtor was always in delay
F
o
u
n
d
a
t
i
o
n
o
f
c
o
n
t
r
a
c
t
u
a
l
l
i
a
b
i
l
i
t
y
Damages in one party’s affairs
Causal link
Fault of second party
Deg
rees
of fault
dolus
culpa
culpa lata
culpa levis
in abstracto
in concreto
F
a
u
l
t
(
c
u
l
p
a
)
•
C
u
l
p
a
l
a
t
a
–
g
r
e
a
t
n
e
g
l
i
g
e
n
c
e
;
•
C
u
l
p
a
l
e
v
i
s
–
l
e
s
s
e
r
d
e
g
r
e
e
o
f
n
e
g
l
i
g
e
n
c
e
w
h
i
c
h
c
o
n
s
i
s
t
n
e
g
l
e
c
t
o
f
c
a
r
e
t
h
a
t
w
e
u
s
e
d
t
o
e
x
p
e
c
t
f
r
o
m
:
a
)
c
u
l
p
a
i
n
a
b
s
t
r
a
c
t
o
–
d
i
l
i
g
e
n
t
p
a
r
t
n
e
r
o
r
g
o
o
d
h
o
s
t
b
)
c
u
l
p
a
i
n
c
o
n
c
r
e
t
o
–
f
r
o
m
d
e
b
t
o
r
w
h
o
a
c
t
i
n
h
i
s
o
w
n
a
f
f
a
i
r
s
P
r
i
n
c
i
p
l
e
s
o
f
l
i
a
b
i
l
i
t
y
•
P
r
i
m
a
r
y
p
r
i
n
c
i
p
l
e
:
f
a
u
l
t
a
s
a
g
r
o
u
n
d
f
o
r
l
e
g
a
l
l
i
a
b
i
l
i
t
y
•
S
e
c
o
n
d
a
r
y
p
r
i
n
c
i
p
l
e
s
:
c
u
s
t
o
d
i
a
a
n
d
r
i
s
k
(
q
u
a
s
i
-
d
e
l
i
c
t
s
)
•
„
M
a
g
n
a
c
u
l
p
a
d
o
l
u
s
e
s
t
”
–
g
r
e
a
t
n
e
g
l
i
g
e
n
c
e
h
a
d
t
h
e
s
a
m
e
l
e
g
a
l
e
f
f
e
c
t
s
a
s
i
n
t
e
n
t
i
o
n
a
l
f
a
u
l
t
•
„
D
o
l
u
s
s
e
m
p
e
r
p
r
a
e
s
t
a
t
u
r
”
-
l
i
a
b
i
l
i
t
y
i
n
c
a
s
e
o
f
i
n
t
e
n
t
i
o
n
a
l
f
a
u
l
t
c
o
u
l
d
n
’
t
b
e
e
x
c
l
u
d
e
d
•
„
C
a
s
u
s
a
n
u
l
l
o
p
r
a
e
s
t
a
t
u
r
”
-
n
o
o
n
e
i
s
r
e
s
p
o
n
s
i
b
l
e
f
o
r
f
o
r
t
u
i
t
y
H
o
w
t
o
s
e
c
u
r
e
o
b
l
i
g
a
t
i
o
n
s
?
If suability and enforceability of obligation
wasn’t enough creditor might want to
implement some additional securities to
primary
agreement.
Forms of securities were divided into:
I.
Those made by debtor himself
II.
Those made by third party for debtor
T
y
p
e
s
o
f
s
e
c
u
r
i
t
i
e
s
m
a
d
e
b
y
d
e
b
t
o
r
•
Liquidated damages/ contractual penalty
•
Down payment (
arra
)
•
Lien (
fiducia
,
pignus
,
hypotheca
)
•
C
o
n
s
t
i
t
u
t
u
m
d
e
b
i
t
i
p
r
o
p
r
i
i
–
r
e
-
p
l
e
d
g
e
o
f
d
e
b
t
i
n
f
o
r
m
o
f
p
a
c
t
u
m
T
y
p
e
s
o
f
s
e
c
u
r
i
t
i
e
s
m
a
d
e
b
y
t
h
i
r
d
p
a
r
t
i
e
s
•
Surety (
adpromissio
)
•
Intercession which could create another
debtor or only guarantor
•
Credit mandate (
mandatum qualificatum
)
•
C
o
n
s
t
i
t
u
t
u
m
d
e
b
i
t
i
a
l
i
e
n
i
–
g
u
a
r
a
n
t
e
e
o
f
d
e
b
t
i
n
f
o
r
m
o
f
p
a
c
t
u
m
b
y
t
h
i
r
d
p
a
r
t
y
Introduction to the concept of obligations in law, exploring definitions by Paul and Justinian, development of obligations, legal relationships, equality of parties, and obligations in Roman law including actio suits and the origins of obligations in the Law of Twelve Tables.
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Presentation Transcript
Law of obligations: Introduction and concept of obligation
Pauls definition: The essence of the obligation is not make some things or servitudes ours but to enforce second party to gives us something or to provide us with service
Justinian's definition: "The obligation is a legal bond that compels us to provide certain things according to the laws of our country."
Development of obligation: * initial source of obligation: damages done to estate of another pater familias * development of contracts due to need to use someone else estate
Obligation as a legal relationship: The obligation (obligatio) is a legal relationship between two parties, one of which is a creditor (creditor) and the other debtor (debitor).
Obligation is build on the principle of equality of contracting parties, which means that creditor has no power over debtor. Obligation was not only a legal relationship, but was also treated as property (part of res incorporales immaterial property) which can be subject of businnes transactions.
Obligation and actio (suit) In Roman law obligation was strictly bonded to specific suit without suit obligation wasn t enforceable. New obligations was created by adding judicial provisions to new types of agreements.
Relations not covered by any actio could be subject of granting special provision by pretor. Pretor could grant actio in factum suit build on facts that were foundation of parties relationship.
Origin of obligation in the Law of Twelve Tables I. Contracts II. Torts
Origin of obligation in Gaius s Res cottidianae I. Contracts II. Torts III. Various types of causes.
Origin of obligation in Corpus Iuris Civilis Contracts II. Torts III. Obligation arising from situation that resembles contract contractu) IV. Obligation arising from illict act not qualified as delict (quasi ex delictu) I. (quasi ex
Development of contractual obligation * numerus clausus of contracts in archaic roman law * rise of unnamed contracts - enforceable if one of the parties performed their duties * liberalization of formalities in case of oral contract of stipulation * genesis of pacta sunt servanda principle: Pacta quantumcunque nuda servanda - All naked contracts should be protected (Decretals of Gregory IX)
Civil obligations Where enforceable by law, which means: 1. They could be a subject of civil litigation 2. They were legal foundation of executing one s rights
Natural obligations Contrary to civil obligations they weren t enforceable by law, which means they weren t protected by suit and weren t basis for execution.
Natural obligations This type of obligation was usually effect of contracts made by: Slaves Persons under patria potestas Persons under tutelage (minor and women) Persons that had changed their legal status
Natural obligations This type of obligation had certain legal effects: * Fulfillment of this obligation is performing of legal duty * They can be strengthen by pledge * Person that provided peculium could cover his expenses based on that type of obligation in first place before other creditors
Unilaterly bidding contracts This type of obligation had very simple structure: only one party was a creditor and only one was a debtor. In civil litigation only creditor possesed a suit. Usually it was actio stricti iuris. Example: contract of loan
Bilaterally biding contracts (perfect) * both sides were creditors and debtors to each other * both sides possessed actiones to exercise their rights in the civil litigation * principle of equivalence of provisions
Bilaterally biding contracts (imperfect) * at the start they looked like unilaterally binding obligations * in some causes another obligation bond within the same contract and between the same parties could arise - for example in case of damages caused by the object of deposit in the estate of depositary * this second obligation had opposite directions - debtor of primary obligation become creditor and vice versa
Stricti iuris obligations * oldest and simplest type of obligations * upon evaluation judge didn t considered parties performance contract but examined initial party agreements after conclusion of
Bonae fidei obligations * judge could take into account various aspects of contractual relationship - such as pacta adiecta, interest or estate revenue * judge could award compensation to one party due to other party performance
Joint obligation (joint liability) * despite the fact that there are multiple debtors or creditors there was only one debt to fulfill * in case of one debtor who fulfill whole debt in name of the others was created grounds for recourse claims
Subject of obligation Subject of obligation in a one of the following forms: dare - to give something to someone facere - to provide someone with services praestare - to restrain ourselves from doing something or a guarantee obligation
Subject of obligation Claim need to be: * possible to implement * in accordance with the law * in accordance with the morality * sufficiently precise * economically valuable
Clauses that could modified content of the agreement: * rebus sic stantibus clause * good faith (bonae fidei) clause * good practice (boni mores) clause
Subject of obligation Debt could be describe in a specific or general terms which had different effects: * when subject of obligation was specific item in case of it s loss the risk was borne by creditor * when subject of obligation was describe as a item which hade some defined parameters it was always possible (in case of loss or damage) to provide creditor with new item
Impossibility of claim * Impossibilium nulla obligatio as a principle * Impossibility after agreement: - case of vis maior - case of one s party fault
Alternative obligation (Obligatio alternativa) Duae res sunt in obligatione, una in solutione - Two claims in obligation, one in solution
Alternative authorization (Facultas alternativa) Una res est in obligatione, duae in solutione - One claim in obligation, two in solution
Delay (mora) * situation when obligation wasn t fulfilled in timely manner * in case of obligation without specific due date summon was required * in case of obligation with specific due data expiration of this period was sufficient * in case of obligation arisen from a tort debtor was always in delay
Foundation of contractual liability Damages in one party s affairs Causal link Fault of second party
Degrees of fault dolus culpa culpa lata culpa levis in abstracto in concreto
Fault (culpa) Culpa lata great negligence; Culpa levis lesser degree of negligence which consist neglect of care that we used to expect from: a) culpa in abstracto diligent partner or good host b) culpa in concreto from debtor who act in his own affairs
Principles of liability Primary principle: fault as a ground for legal liability Secondary principles: custodia and risk (quasi-delicts) Magna culpa dolus est great negligence had the same legal effects as intentional fault Dolus semper praestatur - liability in case of intentional fault couldn t be excluded Casus a nullo praestatur responsible for fortuity - no one is
How to secure obligations? If suability and enforceability of obligation wasn t enough creditor implement some additional securities to primary agreement. might want to Forms of securities were divided into: I. Those made by debtor himself II. Those made by third party for debtor
Types of securities made by debtor Liquidated damages/ contractual penalty Down payment (arra) Lien (fiducia, pignus, hypotheca) Constitutum debiti proprii re-pledge of debt in form of pactum
Types of securities made by third parties Surety (adpromissio) Intercession which could create another debtor or only guarantor Credit mandate (mandatum qualificatum) Constitutum debiti alieni guarantee of debt in form of pactum by third party
