Law of obligations
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The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law. The law of obligations seeks to organize and regulate the voluntary and semi-voluntary legal relations available between moral and natural persons with respect to
- obligations under contracts, both innominate and nominate (for example: sales, gift, lease, carriage, mandate, association, deposit, loan, employment, insurance, gambling and arbitration)
- in unjust enrichment
- management of the property of another (or "negotiorum gestio", the name taken from Roman Law)
- the reception of the thing not due
- the various forms of extra-contractual responsibility between persons known as delicts and quasi-delicts, which are similar to tort and negligence, respectively, at common law.
Despite the relatively distinct nature of these various sources of obligations, they are considered together under a law of obligations on the basis that all are instances where a debtor has a duty to execute a certain performance towards a creditor.
History of the Law of Obligations
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". 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. 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, it is important to note that 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 3. 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 of an obligation
Justinian first defines an Obligation in his Institutiones, 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 contracts, delicts, semi-contracts, and semi-delicts.
Today the term Obligation, as it applies within civilian legal systems, means more specifically a legal bond between two or more persons, by which one person, the debtor, is held liable to another, the creditor, to perform a "prestation" consisting of "doing" or "not doing" something at the risk of legal sanction. Thus the term encompasses both sides of the equation, both the duty of the debtor and the right of the creditor. In this way it differs from the common English language conception of Obligation which denotes only the duty aspect.
Every obligation has four essential requisites otherwise known as the elements of obligation. They are:
- A passive subject (called debtor or obligor): the person who is bound to the fulfillment of the obligation.
- An active subject (called creditor or obligee): the person who is entitled to demand the fulfillment of the obligation.
- Object or prestation: subject matter of the obligation
- A juridical or legal tie: the vinculum; the efficient cause that binds or connects the parties.
A contract can be broadly defined as an agreement that is enforceable at law. Gaius classified contracts into four categories which are: consensual contracts, verbal contracts, contracts re, contracts litteris. But this classification cannot cover all the contracts, such as pacts and innominate contracts.
Quasi-contract is one of the four categories of obligation in Justinian's classification. The main cases are negotiorum gestio (conducting of another person's affairs without their authorisation), condictio indebiti (unjust enrichment) and common ownership.
The designation comprised a group of actions of no obvious similarity, classified by Justinian as analogous to delictual obligations. It includes Res suspensae, things poured or thrown, shippers/innkeepers/stablekeepers, and erring judges.
- Zimmermann, Reinhard. “The Law of Obligations: Roman Foundations of the Civilian Tradition” (Oxford: Oxford University Press, 1996) at 1
- see for example: Exodus 21.23-25
- Zimmermann, at 2-3
- XII tables, specifically Table III "Debt"
- Zimmermann, at 3
- Albanese, Bernardo. "Papimano e la definizione di obligatio in J, 3, 13, pr." (1984) 50 SDHI 166 sqq.
- Justinian. "Institute." Trans. John B. Moyle. (Oxford: Oxford University Press. 1889) at 132
- BAUDOUIN, J.-L., P.-G. JOBIN, and N. VÉZINA, “Les Obligations, 6th ed.,” (Cowansville: Éditions Yvon Blais. 2005) at 19