Principles of Roman Law: Law of Obligation
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Roman law classified obligations into four main categories: 1) Obligations from contract - These included real contracts (formed by transfer of an object), verbal contracts (formed through spoken agreement), literal contracts (formed through a written document), and consensual contracts (formed through mutual consent). 2) Obligations from delict - These arose from wrongful acts like theft or damage to property. 3) Obligations from quasi-contract - These were obligations imposed by law without agreement, such as those arising from unjust enrichment. 4) Obligations from quasi-delict - These were similar to delicts but involved negligence rather than intentional misconduct. For a contract to be valid under Roman law,
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Principles of Roman Law: Law of Obligation
- 1. Principles of Roman Law Relating to Obligations Preeti Kana Sikder Lecturer Department of Law & Justice Jahangirnagar University
- 2. “A legal bond whereby we are constrained by a necessity of performing something according to the laws of our country” Definition of Obligation in the ‘Institutes’
- 3. • Obligation is a res incorporalis. • It creates a jus in personam; right available against a specific person. • By Roman usage, it only included rights in personam capable of estimation in money or pertaining to the sphere of proprietary rights. Nature of Obligation
- 4. Civil and Praetorian Civil and Natural Arising from Contract, quasi contract, delict and quasi delict Classification of Obligations
- 5. Who is a Praetor?
- 6. • Civil obligations are created by statutes or, at least approved by civil law • Praetorian obligations created by praetors in exercise of his jurisdiction. They are also called honorary. First Category of Classification: Civil and Praetorian/Honorary
- 7. • A civil obligation is one which is fully protected by law and enforceable by action. • A natural obligation is one which is only imperfectly protected by law, therefore not enforceable by action but has legal consequences, which vary with the circumstances. (Contracts of slaves, Contracts between persons subject to the same potestas) Second Category of Classification: Civil and Natural
- 8. Third Category of Classification: Obligations Arising from Contract Obligations from Delict Obligations arising from Quasi-contract Obligations from Quasi-Delict
- 9. Basic Ideas Relating to Contract These ideas are necessary to understand the types of contracts formulated under Roman Law
- 10. Basic Ideas Relating to Contract • Duty of performance is all on one side • Duty may exist on both sides; equally, immediate or contingent Unilateral v Bilateral • Binding the promisor to the very thing he has promised (Unilateral) • The judges were allowed a greater latitude of interpretation and of decision so as to do substantial justice between parties (Bilateral) Stricti Juris V Bonae Fidei
- 11. Basic Ideas Relating to Contract • The form makes the contract • Depends on the intention of the parties Formal v Informal • Self-contained contracts where inquiry is irrelevant (Formal) • The reason behind promise becomes relevant (Informal) Abstract V Causal
- 12. General Principles of Contract under Roman Law Formation of Contract v Operation of Contract
- 14. What is necessary for initial validity? • An agreement: there must be consensus ad idem (Mutual Agreement) • Intended to create: if the parties do not intend to be bound, the law will not bind them • Apt to create a legal obligation between the parties • Relating to an object which is possible and lawful
- 15. What is necessary for initial validity? • Made between competent persons: list of incompetent persons – Persons of unsound mind, except during lucid intervals, Infantes: Children under 7 years of age Pupilli: Children under 14 (males) or 12 (females) who are not in the power of an ascendant Slaves Sons and other male descendants in power could not contract by civil law with their paterfamilias Women
- 16. What is necessary for initial validity? Mustnotbevoidableby Dolus Metus Vis
- 17. Operation of Contract A contract affects the parties to it and no one else
- 18. How are persons affected by it? • One can not enforce a contract in the performance of which he is not personally interested. • If A says to B, “Do you promise to give ten aurei to C?” and B answers, “I promise”, the stipulation is valid. • A acquires no right, because he has no interest. C acquires no right, because he is not a party. • No one can promise for another. • If A says to B, “Do you promise that C will pay ten aurei?” and B answers, “I promise”, the stipulation is invalid. • B incurs no liability, because he undertakes nothing on his own account, nor does C, because he is not a party to the contract.
- 19. Most of these general principles are to be found in Institutes, which were applicable to contracts in general. However, the theory of contract in general were not prominent. It was specified classes of special contracts which were taken mostly into account by Roman Law. Therefore, Roman law is said to have a ‘law of contracts’, and not a ‘law of contract’.
- 20. • When the Romans speak of obligations arising from contract, they mean obligations arising from agreement. • In Roman law, agreements were not actionable unless they could be referred to one of the four categories, and it was only then that they were said to give rise to obligations from contract. Obligations arising from Contract
- 21. By handing over of a thing (res) By a special kind of writing (litteris) By agreement without anything further (consensu) By a form of words (verbis) Four classes distinguished as obligations
- 22. Contracts known to Roman Law Real Verbal Litteral Consensual
- 23. Types of Real Contract Mutuum Commodatum Depositum Pignus
- 24. Types of Verbal Contract Dotis Dictio Jusjurandaum Liberti StipulatioPignus
- 25. Types of Consensual Contract Emptio Venditio Locatio Conductio Societas Mandatum
- 26. Principles of Roman Law Relating to Succession NEXT CLASS