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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".[1]
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.[2] 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.[3]
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.[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[6] 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."[7] 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.[8] 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:
1. A passive subject (called debtor or obligor): the person who is bound to the fulfillment of
the obligation.
2. An active subject (called creditor or obligee): the person who is entitled to demand the
fulfillment of the obligation.
3. Object or prestation: subject matter of the obligation
4. A juridical or legal tie: the vinculum; the efficient cause that binds or connects the parties.


CONTRACTS

A contract can be broadly defined as an agreement that is enforceable at law. Gaius 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.
Stipulatio was the basic form of contract in Roman law. It was made in the format of question and
answer. At earlier stages the agreement was made orally between the parties over a number of
witnesses, written documents only served as strong evidence that such oral agreement took place.
Stipulatio, along the line, degenerated and became a written contract.
1. In the Roman law, the contract of stipulation was made in the following manner, namely; the
person to whom the promise was to be made proposed a question to him from whom it was to
proceed, fully expressing the nature and extent of the engagement; and, the question so proposed
being answered in the affirmative, the obligation was complete.
2. It was essentially necessary that both parties should speak, (so that a dumb man could not enter
into a stipulation,) that the person making the promise should answer conformably to the specific
question purposed, without any material interval of time and with the intention of contracting an
obligation.
3. From the general use of this mode of contracting, the term stipulation has been introduced into
common parlance, and in modern language, frequently refers to any thing which forms a material
article of an agreement; though it is applied more correctly and more conformably to its original
meaning to denote the insisting upon and requiring a certain engagement.
4. In this contract the Roman law dispensed with an actual consideration.
DISCUSSED TOPICS IN A CONTRACT OF STIPULATIO
Some parts in Gaius' Institutes
Capacity
In order for a contract to be valid parties must have intellectus (understanding) and voluntas (wish,
will). Lunatics and infants lack intellectus, which means they do not know what they are doing and
so cannot contract. Slaves lack voluntas and therefore cannot contract. However, although slaves
cannot be bound by a contract, they can contract to benefit their master, even without his
permission, because he will then be able to choose whether or not to enforce it or with his consent,
may burden him, because he will provide the necessary voluntas.
Intention to be bound
It was an essential condition of Roman contract law that the intention of a contracting party was
necessary.
Agreement
Agreement was an essential to having a valid contract under Roman law. Without it, the contract
was void. The result of this was that animus was needed from both sides of the party in order to
accept the burden and in order to accept the benefit of the contract.
Orality
A Roman contract had to be oral. Since the contract was oral, it could not be made by the deaf or
dumb without a slave to act as their mouth or ear piece and could not be made from afar.
D.45.1.1.pr, which appears to have been compressed as the reasoning does not follow perfectly,
says that there is only a stipulation when parties speak so the mute, deaf and dumb cannot
stipulate, and someone who is not there cannot stipulate. However, a slave may stipulate for a deaf
or dumb master.
The Greeks, however, used purely written contracts, which clearly had some influence on Roman
law, as writing was used. Over time, stipulatio degenerated and became a written contract.
Specific words
G.3.92 says that to create a verbal obligation one must use pairs of words with a correspondence
between question and answer. It then uses the Latin word veluti, which can mean for example or
that is to say. The text also says that if one party says Will you give? and the other says why not?
he is bound, but if he merely nods; there is no civil or natural obligation. The example of a guarantor
is then given.
Languages
The texts are inconclusive as to which languages can be used G.3.93, this says that stipulation is
valid in Greek, providing the other party understands it. The reference only to Greek may have been
simply because this was the only other language parties could speak.
If the question is in Latin and the reply is in Greek, the obligation is settled providing the two
correspond. This seems to suggest that there was not a closed list of words. Importantly, it then
goes on to say that other languages can only produce an obligation, not an action. However, the
examples given are all of dead languages which may be significant (it may be that other languages
could have been used.) An obligation is only produced where both parties understand each other,
but this may be through an interpreter.
Timing and interval
There was required no gap between question and answer. However, it seems that any redundant
things between question and answer may have been simply ignored. However, the author of this
text was Florentinus, which is interesting. There were two persons of this name, one of them was
contemporary of Ulpian. Generally the Digest tends to quote Ulpian, so if this was the case, we
would expect Ulpian to have been quoted.
Correspondence of subject matter
If something is called by different names between the question and answer, for example, a pen is
referred to as a writing instrument in the answer, the stipulation was still valid.
Content of the contract
Conditional question and unconditional answer This was invalid in Roman law.
Stipulation for when I die: This is valid and is taken to mean I will perform when I am dying the
performance is due in the last moments of life. However, a stipulation for the day before death is
not valid.
Stipulation for after death: This was probably not permissible during classical law because the
obligation resides solely in a third party (the heir). However, one party cannot promise for another,
makes an exception for heirs, which may mean that it was permissible. By the time of Justinian, the
clear inconsistency between permitting a stipulation for when I die but not for after death or for the
day before death, was removed, as both were now valid.
Dies (day)
This is when an obligation is stated as arising on a future event which is certain to happen, for
example, I will pay 10 on Wednesday. The obligation and the debt both arise from the moment of
contract formation, which means that although you cannot bring an action for the 10 before
Wednesday, if the 10 is paid before the end of Wednesday, a condictio could not be brought to
reclaim it.
Conditions
A condition is when an obligation is stated as arising on an event that may or may not happen.
Although you cannot withdraw from a conditional stipulation once made, no debt arises until the
condition is satisfied (D.12.6.16.) An exception arises if the party prevents the condition occurring,
in which case it is treated as arising already D.50.17.161.Conditions can be resolutive or suspensive.
A resolutive condition is where there is an existing debt which is destroyed on the occurrence of an
event. For example: "When X reaches the age of 25, he no longer has the right to live in Y" (the fact
that it is incertain whether or not he will reach this age makes this a conditio and not a dies as dies
incertus pro conditio habetur.
A suspensive condition is one where there is no duty to pay unless the event happens. This was
very useful. It could be used to create a penalty clause, concentrating the mind on performance
because if the building was not built you would have to pay money. It also allowed for the
determination of damages on such an event, rather than leaving it in the hands of the iudex. Leaving
it in the hands of the iudex was uncertain because of problems of evidence, the non availability of
specific performance and that the damages were discretionary and thus uncertain (Inst.3.15.7,) it
was also faster to do it this way. These conditions could also be used to prevent appeal against the
decision of an arbiter by putting a penalty in place if his decision was not kept to. It could also be
used to ensure payment to a third party by making a condition that if a sum was not paid to T, the
money would have to be paid to me (which could not be achieved directly due to the rules relating
to payment of third parties.)
There were, however, a few types of conditions which were problematic:
Immoral conditions these were void outright e.g. promise money to someone if they dont marry
someone (C.3.82)
Impossible conditions e.g. a cow with no legs jumping - These were void, and if found in a will, the
section which was impossible would be struck out (G.3.98.)
Conditions which are always fulfilled If 10 is promised if S doesnt win the lottery and S can never
win the lottery because he is a slave, the money is always due (D.44.1.7 repeated by Justinian.)
Risk bearing in contracts If A promises 10 if B doesnt give 5 to S, and S dies the risk falls on A.
However, it can be redrafted as 10 will be given is 5 is not given to S. If S then dies the risk falls
on..
Perplexing conditions e.g. in wills - that S is to become free and when he is free, he is to be heir
(D.28.5.9.14) Romans normally saved them. For example, in this case they regarded the man as
both free and bound at the same time.
Preposterous conditions Obligation due before you can know if it is true. J.3.9.14 says that it used
to be that preposterous conditions were invalid but Justinian changed the law. However, it doesnt
seem to be that it was invalid by the time of Paul and Africanus this may have been an interpolated,
or the lawyers may have reached this point by later classical law. However, contrasting the
examples given in these two texts suggests that there may have been a fundamental different
between the two types of preposterous conditions. In J.3.9.14 the example given if promising to pay
on Wednesday if the ship arrives on Friday. In D.45.1.126.pr it is that the party will pay 10 per year
from today if S becomes counsel. In the second example, it could be that the obligation arises when
S becomes counsel, however, backdated payments will have to be paid from this point now. The
Code 6.3.52 also speaks on this matter, however it argues that they are invalid and valid, and
appears to have been something like lecture notes, updated with the changes made by Justinian but
without removing the old stuff.
Remedies
Condictio This is a claim for a certain thing. In the condictio you did not have to say why
something was owed merely that it was owed and claim the exact precise amount. Its original role
in the system of legis actiones was that D would swear he hadnt got x, if he failed to swear it he
would be liable and pay an extra penalty. Alternatively, D could challenge P to swear. If P swears
successfully he would not be liable, if he fails he is liable for this and a penalty. If he refuses to
swear, the claim would be disallowed. Here the beliefs on swearing were that the gods would
prevent someone from saying the untruth. However, there was little room for flexible
interpretation of liability because no questions were asked when the oath was made. By the time of
Ulpian there was a condictio certae res to establish the value of a thing.
Actio ex stipulatu This is a claim for an uncertain thing and would give unliquidated damages e.g.
failure to do something. The procedure was that you would quote the words of the stipulatio and
the iudex would determine the amount due. This meant that there was leeway in determining the
amount of damages owed (so that the stipulation was theoretically a stricti iuris contract was not a
problem) and was also easier as you did not have to say how much you wanted to claim, and risk
asking for the wrong amount.
Promise to give: stipulatio dari Promises to do: actio ex stipulatu

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 indebiti (unjust enrichment) and common ownership.
QUASI-DELICT
The designation comprised a group of actions of no obvious similarity, classified by Justinian as
analogous to delictual obligations. It includes Res suspensae, things poured or thrown,
shippers/innkeepers/stablekeepers, and erring judges.
REFERENCES

1. Zimmermann, Reinhard. The Law of Obligations: Roman Foundations of the Civilian
Tradition (Oxford: Oxford University Press, 1996) at 1
2. see for example: Exodus 21.23-25
3. Zimmermann, at 2-3
4. XII tables, specifically Table III "Debt"
5. Zimmermann, at 3
6. Albanese, Bernardo. "Papimano e la definizione di obligatio in J, 3, 13, pr." (1984) 50 SDHI
166 sqq.
7. Justinian. "Institute." Trans. John B. Moyle. (Oxford: Oxford University Press. 1889) at 132
8. BAUDOUIN, J.-L., P.-G. JOBIN, and N. VZINA, Les Obligations, 6th ed., (Cowansville:
ditions Yvon Blais. 2005) at 19

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