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 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

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)

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 after conclusion of contract but examined initial party agreements

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” - no one is responsible for fortuity

How to secure obligations?

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

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