Law of obligations
Encyclopedia
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 person
s with respect to
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
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.
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:
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.
(unjust enrichment) and common ownership.,
Private law
Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts, as it is called in the common law, and the law of obligations as it is called in civilian legal systems...
elements of the civil system
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. 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 person
Natural person
Variously, in jurisprudence, a natural person is a human being, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner...
s with respect to
- obligations under contracts, both innominate and nominate (for example: salesSalesA sale is the act of selling a product or service in return for money or other compensation. It is an act of completion of a commercial activity....
, giftGiftA gift or a present is the transfer of something without the expectation of receiving something in return. Although gift-giving might involve an expectation of reciprocity, a gift is meant to be free. In many human societies, the act of mutually exchanging money, goods, etc. may contribute to...
, leaseLeaseA lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
, carriage, mandate, association, depositDeposit accountA deposit account is a current account, savings account, or other type of bank account, at a banking institution that allows money to be deposited and withdrawn by the account holder. These transactions are recorded on the bank's books, and the resulting balance is recorded as a liability for the...
, loanLoanA loan is a type of debt. Like all debt instruments, a loan entails the redistribution of financial assets over time, between the lender and the borrower....
, employmentEmploymentEmployment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
, insuranceInsuranceIn law and economics, insurance is a form of risk management primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the...
, gamblingGamblingGambling is the wagering of money or something of material value on an event with an uncertain outcome with the primary intent of winning additional money and/or material goods...
and arbitrationArbitrationArbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
) - in unjust enrichment
- management of the property of another (or "negotiorum gestioNegotiorum gestioNegotiorum gestio , or agency without specific authorisation under the German Civil Code, undertaking formed without agreement under the French Civil Code or management of business of another under the Japanese Civil Code, is a form of spontaneous agency in which an agent, the gestor, acts on...
", 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-delictQuasi-delictQuasi-delict is a French legal term used in some civil law jurisdictions, encompassing the common law concept of negligence as the breach of a non-wilful extra-contractual obligation to third parties.-External links:*...
s, which are similar to tortTortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
and negligence, respectively, at common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
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
Debtor
A debtor is an entity that owes a debt to someone else. The entity may be an individual, a firm, a government, a company or other legal person. The counterparty is called a creditor...
has a duty to execute a certain performance towards a creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
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 TruculentusTruculentus
Truculentus is a comedic Latin play by the early Roman playwright Titus Maccius Plautus. Following the relationships between prostitutes and their customers, it contains perhaps Plautus’s most cynical depiction of human nature in comparison with his other surviving plays.-Plot:There is very little...
at line 214.
Obligations did not originally form part of Roman Law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, 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
Wrong
A wrong or being wrong is a concept in law, ethics, epistemology, and science. In a colloquial sense, wrongness usually refers to a state of incorrectness, inaccuracy, error, or miscalculation in any number of contexts...
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
Twelve Tables
The Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Law of the Twelve Tables formed the centrepiece of the constitution of the Roman Republic and the core of the mos maiorum...
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 connect the parties.
Contracts
A contract can be broadly defined as an agreement that is enforceable at law. GaiusGaius (jurist)
Gaius was a celebrated Roman jurist. Scholars know very little of his personal life. It is impossible to discover even his full name, Gaius or Caius being merely his personal name...
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-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 indebitiCondictio indebiti
The condictio indebiti is an action in civil law whereby a plaintiff may recover what he has paid the defendant by mistake. This action does not lie, 1. if the sum was due ex aequitate, or by a natural obligation; 2...
(unjust enrichment) and common ownership.,