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