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Summary Roman Law (217) LAW OF OBLIGATION
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Roman Law semester 2 - Law of Obligation full and comprehensive notes. Lecture, textbook and tutorial notes.
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Topic 2: Law of obligations1. Meaning of Obligation:
Etymology: Obstringat, to bind someone with ropes
Vinculum iuris (legal bond):
o Developed from the legal bond between two parties.
o It binds one party to perform to the other.
o 1 party (debtor) has a duty to perform, the other party (creditor) has a
corresponding right – it can be enforced with a (relative) personal right.
o Can be bound in different ways.
Obligation bound in a specific way, legal bond with economic content
from specific sources – unique achievement in human civillisation.
Content:
o Institutes book 2.
Blind people to give, to do, to perform something.
o The creditor gets a personal right (relative) against the debtor.
Deals with actio in personam.
o These obligations incurred through a contract or delict committed.
o Comprises of duty and a right.
Origin
First there was the vinculum facti – a physical bond.
Viculum iuris developed from vinculum facti.
Relationships were originated in family, but an outside may cause harm. They must
recompense
o A person that caused harm was physically grabbed (bond) and could even be
killed.
o This is not ideal: development of payoff of vengeances.
o Pecus – used cattle to pay debts.
o The law was taken into one’s own hands.
o The state then intervened and prescribed a procedure (manus iniectio) of
capture.
A person was bound in chains and incarcerated to encourage
payment.
Legis: table 3 of the XII tables prescribe the procedure.
One can pay off vengeance if one does not choose manus iniectio.
They were put in 7kg chains for 60 days, they were paraded in the
market on 3 occasions, the humiliation was meant to cause payment.
, If you do not pay after the above, you could be sold as slaves across
the Tiper river, or they could be killed by being thrown off the
Tarpeian rock.
If there was more than one creditor: they could divide the person
between them, they could claim their pound of flesh.
Why? The family will pay to get the body parts back – the romans
were superstitious, incorrect burial led the person to haunt the family.
There is no indication that this was followed, the more probable was
that the person was sold as a slave.
o Plebeians were often at the receiving end of the manus iniectio – thus was
one of the causes of the class struggle.
In 326 BC the Lex Poetelia abolished cruel provisions.
o The people could no longer be sold as slaves or killed. They could be
incarcerated and forced to work to pay the debt.
o This began the development of the legal bond.
There are different theories of whether obligation developed out of delict or
contract.
Regardless of this: at the end of development there is the situation where there is a
debt between 2 parties.
Later: vinculum iuris: legal bond.
o Obligatio between 2 specific parties in contract, not a 3rd party.
o It is intensely personal – between the creditor and debtor.
o Consequences:
Cannot create an obligatio in favour of a 3rd party between the
creditor and debtor.
Cannot be transferred.
Ended with the death of the debtor.
Sources of Obligations.
Classical:
o 1.contractus
o 2. delictum
o … and from
o “other causes”
o The cause is the source, it depends if the cause is contractual or delictual.
o These two categories not sufficient to cover all obligations that were
recognised and enforceable through personal actions.
o Obligations arise either from contract or form delict or by some special right
from various [other] types of causes.
o from “variis causarum figuris”
Problem: what does it mean?
, this category Gaius tried to include all obligations that did not arise
form contract or delict such as negotiorum gestio or management of
another’s affairs.
Post – classical.
o 3. quasi ex contractu or
o 4. quasi ex delicto
o Further development:
Justinianus ± 530 AD – Inst 3.13.2 (notas bl. 4) “aut enim ex contractu
sunt aut quasi ex contractu aut maleficio aut quasi ex maleficio” -
obligations arise from contract or as if from contract or from delict or
as if from delict.
o examples?
Quasi contract – lawful acts not founded on agreement
quasi delict – does not differ substantially from delict.
o Gaius: obligations come from the ius civile and the quasi-delict as a product
of praetorian intervention.
o Conclusion: This classification of sources of obligations is of lasting value, still
used in modern legal system such as Code Civil of France and Germany.
2.) Obligationes ex Contractu.
2.1) Oldest types of contract.
Already known by time of XII Tables (450 BC).
Institutions of ius civile, only Roman citizens
2.1.1 Nexum
It is presumed to be aimed at establishing a loan.
Procedure.
Parties:
o Creditor (“nuncupatio”) – uttered formula
o Debtor (nexus)
o Scale holder (libripens) – weighed bronze
o 5 witnesses (adult Roman citizens)
Process:
o Creditor says: “I bind and tie you to me by way of this bronze and scale.”
o If debtor did not pay could he be grabbed directly through manus iniectio –
debtor is exposed to liability in person.
o Witnesses were present when the contract was created, no further proof of
liability necessary, thus could “attach” debtor without further process or
judgment
, o Even after payment formal process of solutio per aes et libram necessary in
order to discharge obligatio.
Development.
Lex Poetelia 326 BC
i. Later used minted money instead of weighing unminted bronze
ii. Later place and time of payment determined in contract
iii. Later interest paid
Effect: nexus could be subjected to manus iniectio if he did not pay = pledging his
person “selfverpanding” – voluntary (still not payment of “debt” – only warding off
execution)
BUT
Cruel consequences of nexum subject lead to strife between
patricians and plebeians
Successors.
o Mutuum (NB) – less formal type of loan (by way of bronze and scale).
o Solutio: per aes et libram.
nexum also gave rise to new debt extinguishing act.
2.1.2 Sponsio
early form of contract, already known in time of XII Tables
precursor of stipulatio (NB!)
Looks like it developed out of: question + immediate and corresponding answer
(verbal question and answer – on your word of honour [fides]) Thus came into
existence through solemn words.
o Prospective creditor – asks if the other party promises to deliver certain
performance
o Prospective debtor / sponsor – answers immediately that he does
Procedure – it is thought to have a ritualistic nature, it could have been a temple
oath that accompanied a sacrifice thus requiring the presence of a priest. Hence the
solemnity requirement.
Origin – still unclear.
Development.
o It lost its sacred nature and the solmenm character was watered down.
o successor: stipulatio
o later called: STIPULATIO, a very important Roman contractus (contractus par
excellence)
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