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.

II.

Contracts Torts

I.

II.

III.

Origin of obligation in Gaius’s

Res cottidianae

Contracts Torts 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

law of contracts in archaic roman * 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 „naked”

pacta sunt servanda

„Pacta quantumcunque nuda servanda” - All contracts should be principle: 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 parties performance after didn’t considered 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

revenue , interest or estate * 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 -

services to provide someone with

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

*

Impossibilium

principle

Impossibility of claim

nulla obligatio

* Impossibility after agreement: - case of

vis maior

- case of one’s party fault as a

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 -

claim in obligation, two in solution One

* situation when obligation timely manner

Delay (mora)

wasn’t fulfilled in * 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

dolus

Degrees of fault

culpa lata in abstracto culpa culpa levis 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

host

–

diligent partner or good

b) culpa in concreto

his own affairs

–

from debtor who act in

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 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

form of

pactum

– re-pledge of debt in

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