Thelaw of obligations is one branch ofprivate law under thecivil lawlegal system 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 asobligations, 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 theobligor a duty to perform, and simultaneously creates a corresponding right to demand performance by theobligee to whom performance is to be tendered.
The word originally derives from the Latin "obligare" which comes from the root "lig" which suggests being bound, as one is toGod for instance in "re-ligio".[1] This term first appears in Plautus' playTruculentus at line 214.
Obligations did not originally form part ofRoman 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 awrong against another party. These situations were originally governed by a basic customary law of revenge.[2] This undesirable situation eventually evolved into a system of liability in which people were initially encouraged and later essentially compelled to accept monetary compensation from the wrongdoer or their family instead of seeking vengeance. This marked an important shift in the law from vengeance toward 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.[3]
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 theTwelve Tables, specifically Table III.[4] 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.[5]
Justinian first defines an obligation (obligatio)[6] in hisInstitutes, 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."[7] He further separates the law of obligations intocontracts,delicts,quasi-contracts, andquasi-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).[8] 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:
Obligations arising out of the will of the parties are calledvoluntary, and those imposed by operation of law are calledinvoluntary. Sometimes these are called conventional and obediential. The events giving rise to obligations may be further distinguished into specified categories.
One of the first known classifications was made byGaius in hisInstitutes, who divided obligations into obligationsex contractu (obligations arising from agreements) and obligationsex delicto (obligations arising fromcivil wrongs and crimes). However, since this dichotomy was too simplistic, in his later workRes cottidianae Gaius classified all obligations into the aforementioned obligationsex contractu, obligationsex delicto, and obligationsex variis causarum figuris, which was aheterogeneous 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 inJustinian'sInstitutes (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).[9]
A contract can be broadly defined as an agreement that is enforceable at law.Gaius classified contracts into four categories which are: contractsconsensu, verbal contracts, contractsre, and contractslitteris. 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 contractsconsensu, 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 ofreal estate must be concluded in a special written form that is validated by apublic notary).[10]
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 arenegotiorum gestio (conducting of another person's affairs without their authorization),unjust enrichment, andsolutio indebiti.[11] 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;
The designation comprised a group of actions that are very similar to delicts, but lacking one of key elements of delicts. It includesres suspensae, responsibility for things poured or thrown out of buildings, responsibility of shippers/innkeepers/stablekeepers, and erring judges. For example, the responsibility ofinnkeepers creates obligations when certain things left by guests in the lodging are destroyed, damaged or lost by the innkeeper's assistants oremployees. In this case, the innkeeper is responsible for the damages to the guest's property, even though he did not cause them personally.[12]
Obligations are classified according to the nature of the performance (prestation):
