Summary
Summary Roman Law 271 Notes Semester 2
- Course
- Roman Law 271 (ROMANLAW271)
- Institution
- Stellenbosch University (SUN)
Extensive notes and summaries on the examinable material in Roman Law 271 for Semester 2
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Roman Law of ObligationsRoman Law 271 – Semester 2
Lizl Carse – lizlcarse@gmail.com
, Meaning of the concept obligation
Etymology
o Obligatio = derived from the Latin obstringat =“to be bound by ropes”
= Vinculum iuris (legal bond) – binds one party to perform towards other
= One has a duty the other has a right
o The root lig – also implies being bound (as in lex)
o Initially signified condition of physically bondage by ropes or chains
o Root still seen today in English words such as religion
We use obligatio as it refers to both the duty and the right
- In English it only refers to duty - obligation
Content = performance
Binds another person to give, do or perform something for us
Can be bound in different ways
Obligation = a specific economic bond
Content can only be derived from specific sources
Justinian:
“Obligationes est ius vinculum, quo necessitate adstringimur alicius solvendae rei secundum nostrae
civitatis iura”
= An obligation is a bond or tie of the law by which we are so constrained that we must of necessity render
something in accordance with the laws of our state.
THUS
1. = legal bond between two parties
AND
2. Binds one party to perform
Duty
A B
Right
(Creditor has action against debtor)
An obligatio can thus be described as:
→ Legal tie/bond where debtor is obligated to perform to a creditor
→ The creditor then has a personal right toward the debtor to fulfil this obligation
English the word obligation usually relate only to debtor’s side
BUT obligatio is used to refer both to:
- The debtor’s duty
- And to the creditor’s corresponding right
4
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, Problem:
o Concept of “tie/bond” very wide
o Can be “bound” in various other ways i.e. family, emotional, obedience,
Respect
This is a specific tie with economic value
- Can only consist of certain sources
(Schulz: a unique achievement in the history of human civilization” p. 463)
-ORIGIN OF THE CONCEPT OBLIGATIO:
The idea that obligatio is a legal bond (vinculum iuris) developed out of an earlier concept, namely the
physical bond (vinculum facti) – was always this then developed
First was viniculum facti = physical bond
Relationships were organised in a family context, but sometimes not the case
Was physical, could have been killed
Initially no state involvement and person took law into own hands
THEN STATE INTERVESNED with procedure named manus iniecto
Why was there a need for such a physical bond?
- Not all relationships could be regulated in a family context
For example – what if someone from another family injured you or stole from you or damaged your property?
It is clear that the person should be required to “make good” his action in some or other way
How?
Person who were disadvantaged took the law into their own hands
- They literally grabbed the person or killed them
- Later the idea of paying in instalments or a penalty was developed
STATE INTERVENTION
Formal procedure = manus iniecto
Later legislation is developed = 3d table of the 12 tables
Sanctions:
1. Could first pay off
If not then 2nd step is in private jail
2. Person held in prison for 60 days then disciplined 3 days in market place to humiliate
- This was to convince him to pay debt
- Person was placed in chains and held in prison
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, If still not pay debt
3. Could be sold as slave across the tibes river = transtiberim
- Outside the borders of Rome because roman citizens could not become slaves in Rome
- Depends on owner if you can later buy your freedom from the money they allowed you to save
Also sometimes thrown dead with ‘tarpeinse’ rock and body cut up and then sold to get pound of flesh
o If more than one creditor body was divided in multiple pieces
o This encouraged family to pay to get back body parts
o Romans were superstitious and thought would get haunted if not have correct burial
Mainly used on plebeians as not lot of record that this happened often
Further development:
Cruelty cancelled/abolished
o You were now forced to work for the person to pay off your debt
o Cannot kill him anymore so sell as slave
Later (finally)
= Viniculum iuris
= legal bond
Covered situation where debt was involved regardless whether it came about through delict or contract
Bond did retain its intensely personal character
Consequences:
1. Cannot create obligation in favor of a third party
2. Cannot transfer obligatio
3. Obligatio dies at the death of the debtor
ENGLISH LAW: “privity of contract” – Not Roman concept
- Describes the intense personal commitment
- Cannot add third parties
Term OBLIGATIO now covers these “debt” relationships
NB! From viewpoint of procedural law – creditor could enforce obligatio by means of a personal action,
= an actio in personam.
Take note of the existence of theories claiming that delict was not the source of obligatio, but that the concept
developed out of promises such as sponsio which was already know by time of XII Tables.
6
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lizlcarse@gmail.com
Not for unauthorised copying or resale
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