What is Obligation in Law of Obligations Module

The law of obligations is the branch of private law in the systems of Roman-Germanic tradition which deals with obligations. The obligation results either from a legislative or regulatory provision, or from an agreement or contract, which is defined as a legal relationship between two or more persons by which one person commits himself to another to do (or not to) not do) something, either of a criminal or civil fault (quasi-contract). Conventions can only be concluded in areas where public policy provisions do not already exist, they must follow rules of formalism and they impose obligations only on the contracting parties, except if they have been published in the legal forms, which makes them opposable to third parties.

Obligation is a legal bond between two or more persons by which one person binds himself to another to do (or not to) or to give. The parties to the bond report are: a creditor, who has a right of claim against the debtor, namely the benefit of a benefit; and a debtor, who owes a debt to the creditor, and who owes that debt on the entirety of his assets, except exempt property.

This subjective connection between the creditor and the debtor has several characteristics: it is a patrimonial link, which incorporates the assets of the creditor and the liabilities of the debtor, and is vested by the effect of the estate; it is also a personal right, relating to the property of others, as opposed to real rights, relating to a thing; it is subject to compulsory execution, whether the obligation is civil or commercial.

When a synallagmatic contract is concluded, each of the parties will be charged with a number of obligations. Thus, each party will have both debtor and creditor status, on different obligations. For example, in a contract of sale, the buyer will be debtor of the obligation to pay the price and creditor of the obligation to issue the thing when the seller will be creditor of the obligation to pay the price but debtor of the obligation to deliver the thing sold.

There are several categories of obligation. Obligation can be classified based on nature (moral obligation, natural obligation and civil obligations). It can also be classified according to their source and object and means or purpose. The obligation of means requires the debtor to make every effort to fulfill the promised benefit, or to achieve the expected result, without however guaranteeing it. The debtor can not therefore be held responsible for the dissatisfaction of the creditor given the vagaries. Thus, the doctor is bound by an obligation of means towards his patient: he has the duty to do everything possible to cure him, but can not be held responsible for the therapeutic failure (except for his fault).

Enforceable vs Unenforceable Obligations in Contract Law and Tort (Delict)

On the other hand, performance requirements require the debtor to achieve a certain result, on pain of sanction. The absence of result will necessarily incur the contractual liability of the debtor, except in cases of force majeure. Thus, the carrier’s obligation of result is to move people or goods. Any delay, or damage inflicted on the persons and goods transported will incur the contractual liability of the carrier. Obligation have both social and economic purpose. The bond unites several people, and participates in the formation of the social bond. It helps to ensure the cohesion of the social body, and the solidarity of its members, particularly in terms of damage caused to others (extra contractual liability). The obligation is also an instrument of control of social behavior, because the illegality of the obligations is source of nullity. The causes of illicitness are determined by the social body, and the parties can not derogate from the rules of public order. Concerning economic purpose, obligation and property rights are closely linked: it is through the creation of an obligational link that one can most of the time gain access to the property. The economic purpose of the obligation therefore lies in its ability to allow transfers of ownership, thus the movement of goods and merchandise.

Obligation can be enforceable or unenforceable. Moral obligations, for example, are not legal obligations. The natural obligations, on the other hand are morally binding, but can not be legally sanctioned. However, civil obligations are legally binding, and are subject to forced execution

In the most ancient time, at an early stage of the development of society, there was no such thing as “every contract in itself creates an obligation between the parties. And only when the state has established a guaranteed responsibility for the violation of known types of contracts, a duty arises. And the term “contractus” itself was not used in ancient Roman law in the meaning of the source of the obligation. The terms contrahere, contractus “only indicated the bonds of obligation themselves, the obligation itself”. Under Roman law, only some agreements gave the right to claim, it was they who established civil obligations. From the sources of law, we see that Roman lawyers distinguished between two types of agreements: pactum or pactio in the technical sense of the word and contraction.

Example of modern contract law is Entores Ltd v Miles Far East Corporation. This contract law borrows most of its principles from Roman contract law. In both cases, both the future debtor and the future creditor could initiate the conclusion of the contract. A proposal to conclude an agreement on certain conditions (propositio) was called an offer, and consent to conclude it on the proposed conditions was called an acceptance. In the current law, offer is commonly termed as an agreement. In addition, like the Roman law, the offer (or agreement) should be sent to a specific person and contain all the essential terms of the contract. The acceptance should not contain new terms of the contract, as in this case it will be a new offer. There are also several essentials of contract that are common in both the Roman and modern law. The first essential common for both is the agreed will of the subjects of the contract. In both, the will of the parties to the contract should be aimed at performing the same actions with respect to the same subject. Only then will the parties’ will (expressed outward will) be agreed. The forms of expression of will were different: verbal, written, by means of gestures, sometimes by silence, as well as by hidden actions.

Historical Links between Ancient Roman Law and Modern Law in Contract Law and Tort (Delict)

However, the difference is the way the communication between the two parties is done. Unlike the ancient laws, the use of instant communication is the central issue being addressed in Entores Ltd v Miles Far East Corporation. Nevertheless, the same law concluded that the contract is only complete when the acceptance is received by the offeror; and the contract is made at the place where the acceptance is received.  Similar situation is evidenced in Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd

A tort (delicta) is an offense, a wrongful act. In Roman law, delicts were divided into delicta privata (private) and delicta publica (public). They differed from each other by the object of encroachment and sanctions applied to the delinquent. Public criminal acts were directed against the interests of the state. They entailed physical punishment up to the execution of violators or a fine in the income of the state. Private delicts are encroachment on the interests of private individuals. They entailed damages or a fine in favor of the victim. Therefore, they were, as already mentioned, the source of obligations.

Example of modern law of tort is the case between Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd. The law covers the Tort of Vicarious Liability. This law is just but modification of the Roman law. For example, in both the modern and Roman law, the elements of private delicts were: committing any external action, in the classical law – also refraining from any action; the presence of consequences resulting from actions or inactions; the presence of a causal relationship between the committed actions (inaction) and their consequences; the unlawfulness of the actions committed and the damage caused by these actions; the guilt of the person who committed the wrongful act in the form of intent.

The only difference is that in early law, only obligations due to tort ended in simple execution (reparation of harm). In order to terminate obligations under formal contracts, equally formal actions were required that accompany actual execution (if something was received in the order of mancipation, then it could be returned only through mancipation). In order to avoid possible injustices associated with this requirement of civil law, the forgiveness of obligations in court at the stage of bringing a claim has become a practice. However, in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd., the court ruled that even if employee committed a tort, the employer can still be held liable because the test of employment hinged on the capacity to control.

Evidently, from the analysis, it is apparent that the modern laws are just but modification of the ancient laws such as Roman laws. I believe that studying the historical origin of law of obligation will not only help us understand the specific elements that are being emphasized but also help us appreciate the influence of the contextual historical, social and economic factors on the development of law.

Arvind, T T, and Jenny Steele. Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change. 2012.

Birks, Peter, and Eric Descheemaeker. The Roman Law of Obligations. Oxford: Oxford University Press, 2014.

Butler, Oliver. “Obligations Imposed on Private Parties by the GDPR and UK Data Protection Law: Blurring the Public-Private Divide.” European Public Law, 24, no. 3, (Sept. 2018): 555–572

Ibbetson, D J. A Historical Introduction to the Law of Obligations. Oxford: Oxford University Press, 1999.

Jooho Lee. “The Entrepreneurial Responsibilities Test.” Tulane Law Review, 92, no. 4, (Apr. 2018): 777–835.

Kramer, Adam. The Law of Contract Damages. 2017.

McGinn, Thomas A. J. Obligations in Roman Law: Past, Present, and Future. , 2012.

Monaghan, Jake. “The Special Moral Obligations of Law Enforcement.” Journal of Political Philosophy, 25, no. 2, (June 2017): 218–237.

Mousourakis, George. Fundamentals of Roman Private Law. Heidelberg: Springer, 2012. Print.

Nicolae, Ioana. “A Comparative Analysis Regarding the Obligation of Result and the Obligation of Conduct (Of Means) in Civil Law.” Bulletin of the Transilvania University of Brasov. Series VII: Social Sciences. Law, 7, no. 1, (Jan. 2014): 155–162

Steele, Jenny. Tort Law: Text, Cases, and Materials. , 2014.

Zheng Tang. “Law Applicable in the Absence of Choice – The New Article 4 of the Rome I Regulation.” Modern Law Review, 71, no. 5, (Sept. 2008): 785–800.