Summary
Summary Roman Law 271 Summaries and Class Notes
- Course
- Roman Law 271 (ROMANLAW271)
- Institution
- Stellenbosch University (SUN)
Extensive notes and summaries on the examinable material in Roman Law 271
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ROMAN LAW 271ROMAN LAW OF OBLIGATIONS 2018
(Ms M R H de Villiers)
B. COURSE OUTLINE WITH SUPPLEMENTARY NOTES
1. GENERAL INTRODUCTION
1.1 The meaning of the obligation concept in Roman law
Prescribed: du Plessis, Borkowski’s Textbook on Roman Law, chapter 9.1.1
Recommended: Zimmermann, The Law of Obligations, pp. 1-10
Supplementary notes:
The textbook deals broadly with the concept obligatio or obligation. But where does this
concept, which is one of the most important Roman contributions to the law, come from?
Today Romanists accept that between 450 BC and 100 BC the original obligatio was not an
imaginary legal bond (vinculum iuris), but an actual physical bond (vinculum facti). Look
at the definition of an obligation in Digesta 44 7 3 pr (see part 9.1.1 of the textbook). It is
said that the substance of an obligation consists of someone being “bound” to give
something, do something or perform something for someone else. The word “bound” in that
sense is a translation of the Latin word “obstringat”, which actually means “to be bound with
ropes”. The verb “obligari”, which is related to the word “obligatio”, actually also means “to
be bound with chains”. Originally, therefore, this verb signified a condition of physical
bondage: to be shackled, under the direct physical dominium of the creditor. In the early
development stages of the Roman law, obligatio therefore had a completely realistic
meaning and showed a literal physical bondage: the debtor’s person, body and life were
subject to the creditor.
The earliest physical restraint (vinculum facti) of the debtor can be found in the origin of
the Roman law of delict. Originally, a distinction was not drawn between the law of delict
and the criminal law (we shall return to this in part 7) and instead of crimes and delictual
contraventions being punished by the state, victims and their fellow tribe members had to
take the law into their own hands and enforce their rights by means of private vengeance.
, 4
If, for example, a member of tribe A was killed or injured by a member of tribe B, the victim
would go to tribe B’s homestead and take vengeance on the wrongdoer. The victim was
entitled to physically grab the wrongdoer to take revenge. They later accepted that tribe B
could pay an amount of money to atone for what was done or “buy off” the wrong.
To understand the personal bondage of the debtor it helps to analyse it in terms of a
distinction between obligatio (liability) and debitum (debt). In the earliest Roman law,
obligatio (liability) and debitum (debt) were not necessarily linked. Even though the person
who committed the delict was liable to the victim, a debt to pay atonement or ransom money
did not automatically arise from the delict (see Zimmermann 5).
The groundwork had been laid for the replacement of the peculiar distinction between
obligatio (liability) and debitum (debt). In the classic Roman law, the word debitum never
meant debt without liability – the concepts of debt and liability were, as in the modern law,
always seemingly present regarding normal obligations. A modern obligation therefore
implies that the debtor at the same time is liable to and under a duty to perform. If A lends
money to B, B is under an obligation to pay the money back: if he neglects his obligation, he
is liable to pay the money back. After judgment has been obtained against him, the judgment
will be enforced by the state – normally by attaching his assets.
, 5
1.2 The sources of obligations
Prescribed: Du Plessis, Borkowski’s Textbook on Roman law, chapter 9.1.2
Recommended: Zimmermann, The Law of Obligations, pp. 10-31
Supplementary notes:
For the purposes of this course, the classification of obligationes according to their sources
is the most important. In this section we must shortly look at how this exceptionally influential
division, which is used by legal systems throughout the world, developed. As indicated in
the textbook at 9.1.1.2, Gaius (an influential jurist of the 2 nd century BC) identified the
following sources of obligations in his Institutes
I 3. 88: Omnis enim obligatio vel ex contractu nascitur vel ex delicto. (All obligations arise either
from contract or from delict).
A contractus is an agreement, according to the civil law (ius civile), which is enforceable
by means of an action. A delict, as already seen, is an unlawful act whereby another is
harmed and which could be the basis for a fine or payment of damages. This dual division
of Gaius’s Institutes was not sufficient to encompass all the obligations which were
recognised and enforceable with a personal action (actio in personam). This is why the Res
Cottidianae, which either is a later work of Gaius, or a later revision of his Institutes, contains
a third division:
D 44 7 1 pr (Res Cottidianae): Obligationes aut ex contractu nascuntur aut ex maleficio aut
proprio quodam iure ex variis causarum figuris. (Obligations arise either from contract or from
delict or by some special right from various [other] types of causes).
With this third division of ex variis causarum figuris, or obligations which arise “from
various [other] types of causes”, Gaius tried to cover all obligations that did not arise from
contract or delict. Examples of such other causes are management of another’s affairs
(negotiorum gestio), guardianship (tutela), and payment of a non-existent debt (the remedy
was the condictio indebiti). These are dealt with in section 6. The Res Cottidianae further
refers to some of the obligations that arise quasi ex maleficio. These are in turn dealt with in
section 10.
In the post-classical time, and probably around + 400 AD at the hand of in the system-
conscious law schools of the East, the obligationes ex variis causarum figuris were further
classified in obligationes quasi ex contractu and obligationes quasi ex delicto. This division
gives rise to the Justinianic classification of 530 AD of four types of obligation:
, 6
I 3 13 2 aut enim ex contractu sunt aut quasi ex contractu aut ex maleficio aut quasi ex
maleficio (obligations arise from contract or as if from contract, from delict or as if from delict).
The division of obligations does not only deal with the development of a functional system.
Any division of obligations ultimately contains pronouncements on why a person should
legitimately be made to do or perform something to another.
The Roman divisions of obligations have exerted a profound influence on legal
development, globally. Various modern codes distinguish between contract and delict as
sources of obligations, and further determine that obligations can also arise in circumstances
which to a varying extent are in accordance with the Roman divisions of quasi-contract and
quasi-delict. In the Anglo-American common law, the notion of a law of obligations, with
various sources of obligations, is not yet firmly established, but this position is gradually
changing, especially due to the influence of the late Professor Peter Birks, Regius Professor
of Civil law at Oxford University.
In the next sections, the various sources of obligations will be dealt with in greater detail.
We shall commence with the oldest contractual obligations.
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