The law of obligations is one branch of
private law
Private law is that part of a legal system that governs interactions between individual persons. It is distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the st ...
under the
civil law legal system
A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...
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.
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
In monotheistic belief systems, God is usually viewed as the supreme being, creator, and principal object of faith. In polytheistic belief systems, a god is "a spirit or being believed to have created, or for controlling some part of the un ...
for instance in "re-ligio". This term first appears in Plautus' play
Truculentus at line 214.
Obligations did not originally form part of
Roman Law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I.
Roman law also den ...
, 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
A wrong or wrength (from Old English – 'crooked') is an act that is illegal or immoral. Legal wrongs are usually quite clearly defined in the law of a state or jurisdiction. They can be divided into civil wrongs and crimes (or ''criminal of ...
against another party. These situations were originally governed by a basic customary law of revenge. 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.
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
The Laws of the Twelve Tables () was the legislation that stood at the foundation of Roman law. Formally promulgated in 449 BC, the Tables consolidated earlier traditions into an enduring set of laws.Crawford, M.H. 'Twelve Tables' in Simon Hornbl ...
'', specifically Table III. 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.
Definition
Justinian
Justinian I (, ; 48214 November 565), also known as Justinian the Great, was Roman emperor from 527 to 565.
His reign was marked by the ambitious but only partly realized ''renovatio imperii'', or "restoration of the Empire". This ambition was ...
first defines an obligation (''obligatio'') in his ''
Institutes
An institute is an organizational body created for a certain purpose. They are often research organisations ( research institutes) created to do research on specific topics, or can also be a professional body.
In some countries, 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." He further separates the law of obligations into
contract
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 thos ...
s,
delict
Delict (from Latin ''dēlictum'', past participle of ''dēlinquere'' ‘to be at fault, offend’) 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 ...
s,
quasi-contract
A quasi-contract (or implied-in-law contract or constructive 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 contrac ...
s, 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). 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:
# the
obligor: obligant duty-bound to fulfill the obligation; he who has a duty.
# the
obligee: obligant entitled to demand the fulfillment of the obligation; he who has a right.
# the subject matter, the prestation: the performance to be tendered.
# 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.
* voluntary:
** unilateral promise (''pollicitatio'') - undertaking by promisor only to perform, not requiring the promisee's agreement
** contract
**
quasi-contract
A quasi-contract (or implied-in-law contract or constructive 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 contrac ...
*** ''
negotiorum gestio
''Negotiorum gestio'' (, Latin for "management of business") is a form of spontaneous voluntary agency in which an intervenor or intermeddler, the ''gestor'', acts on behalf and for the benefit of a principal (''dominus negotii''), but without th ...
'' - duty to repay an intervenor (''gestor'') who has managed the affairs or property of another (''dominus negotii'') who was unable to so
*** ''solutio indebiti'' - undue payment or delivery of a thing to another (''accipiens''), who is then obligated to return the thing to the payer (''solvens'')
* involuntary:
** delicts and quasi-delicts (equivalent to the
common-law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prec ...
tort
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 cri ...
).
**
unjust enrichment
Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages (the law of compensation), restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability ...
(''
condictio indebiti
In Roman law and the civil legal systems descending from it, the is a legal action () whereby a plaintiff may recover what he has paid the defendant by mistake; such mistaken payment is known as . This action does not lie
# if the sum was due ...
'')
One of the first known classifications was made by
Gaius
Gaius, sometimes spelled Caius, was a common Latin praenomen; see Gaius (praenomen).
People
* Gaius (biblical figure) (1st century AD)
*Gaius (jurist) (), Roman jurist
* Gaius Acilius
* Gaius Antonius
* Gaius Antonius Hybrida
* Gaius Asinius Gal ...
in his ''
Institutes
An institute is an organizational body created for a certain purpose. They are often research organisations ( research institutes) created to do research on specific topics, or can also be a professional body.
In some countries, institutes ...
'', who divided obligations into obligations ''ex contractu'' (obligations arising from agreements) and obligations ''ex delicto'' (obligations arising from
civil wrong
A civil wrong or wrong is a cause of action under civil law. Types include tort, breach of contract and breach of trust.
Something that amounts to a civil wrong is wrongful. A wrong involves the violation of a right because wrong and right are ...
s and crimes). However, since this dichotomy was too simplistic, in his later work ''Res cottidianae'' Gaius classified all obligations into the aforementioned obligations ''ex contractu'', obligations ''ex delicto'', and obligations ''ex variis causarum figuris'', which was a
heterogeneous
Homogeneity and heterogeneity are concepts relating to the uniformity of a substance, process or image. A homogeneous feature is uniform in composition or character (i.e., color, shape, size, weight, height, distribution, texture, language, i ...
category that was supposed to include all the cases of obligations not arising from torts 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 torts (''ex maleficio''), those arising from quasi-contracts (''quasi ex contractu''), and those arising from quasi-delicts (''quasi ex maleficio'').
Contracts
A contract can be broadly defined as an agreement that is enforceable at law.
Gaius
Gaius, sometimes spelled Caius, was a common Latin praenomen; see Gaius (praenomen).
People
* Gaius (biblical figure) (1st century AD)
*Gaius (jurist) (), Roman jurist
* Gaius Acilius
* Gaius Antonius
* Gaius Antonius Hybrida
* Gaius Asinius Gal ...
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).
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
Restitution and unjust enrichment is the field of law relating to gains-based recovery. In contrast with damages (the law of compensation), restitution is a claim or remedy requiring a defendant to give up benefits wrongfully obtained. Liability ...
, and ''solutio indebiti''. 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
innkeepers creates obligations when certain things left by guests in the lodging are destroyed, damaged or lost by the innkeeper's assistants or
employees
Employment is a relationship between two parties regulating the provision of paid labour services. Usually based on a contract, one party, the employer, which might be a corporation, a not-for-profit organization, a co-operative, or any othe ...
. In this case, the innkeeper is responsible for the damages to the guest's property, even though he did not cause them personally.
Subject matter
Obligations are classified according to the nature of the performance (prestation):
* real obligation - related somehow to immovable property
* obligation to give - obligations to give or possession, or enjoyment
** specific obligation - delivery of a determinate thing when it is particularly designated or physically separated from all others of the same class
** generic obligation - delivery of a generic thing
[
* personal obligations - undertakings either to do or not do all kinds of work or service
** positive personal obligation - undertaking or obligation to do
** negative personal obligation - forbearance or obligation to not do
]
See also
* Right
Rights are law, legal, social, or ethics, ethical principles of freedom or Entitlement (fair division), entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal sy ...
* Solidary obligations
* Swiss Code of Obligations
The Swiss Code of Obligations (SR/RS 22, ; ; ; ), the 5th part of the Swiss Civil Code, Swiss civil code, is a Federal act (Switzerland), federal law that regulates contract law and joint-stock company, joint-stock companies ( or S.A. (corporati ...
References
Citations
Sources
*
Further reading
* Stefano Bertea. ''A theory of legal obligation''. Cambridge: Cambridge University Press, 2019.
* Siel Demeyere. ''Real obligations at the edge of contract and property''. Cambridge: Intersentia, 2020.
* Martin Hogg. ''Obligations''. Edinburgh: Avizandum, 2003.
* Martin Hogg. ''Obligations: law and language''. Cambridge: Cambridge University Press, 2017.
* Alain A. Levasseur et al. ''Louisiana law of obligations: a methodological and comparative perspective; cases, texts and materials'', 2nd edn. Durham, NC: Carolina Academic Press, 2023.
* Dário Moura Vicente. ''Comparative law of obligations''. Cheltenham, UK: Edward Elgar, 2023.
* Daniel P. Visseur, ed. ''The limits of the law of obligations''. Kenwyn, SA: Juta, 1997.
* Reinhard Zimmermann. ''The new German law of obligations: historical and comparative perspectives''. Oxford: Oxford University Press, 2006.
; English law
* Andrew Burrows, ed. ''Principles of the English law of obligations''. Oxford: Oxford University Press, 2015.
* Geoffrey Samuel. ''Law of obligations and legal remedies'', 2nd edn. London/Sydney: Cavendish, 2001.
* Geoffrey Samuel. ''Law of obligations''. Cheltenham, UK: Edward Elgar, 2010.
; Philippines law
* Hector de Leon & Hector de Leon, Jr. ''Law on obligations and contracts'', 12th edn. Manila: REX Book Store, 2021.
* Andrix D. Domingo. ''Obligations and contracts: Laws, principles, and jurisprudence'', 4th edn. Benguet: Coaching for Results, 2020.
* Elmer T. Rabuya. ''Obligations and contracts''. Manila: REX Book Store, 2019.
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