Roman Law of Obligations (second semester)
Introduction
The roman law of obligations, revolved around obligatio. The roman obligatio
referred to a right and a duty and signified a condition of physical bondage.
An obligation is a vinculum iuris. Which is a legal bond between two parties where
one must perform for the other. One party has a duty and the other has a
corresponding right. A creditor has a right and a debtor has a duty, in which a
creditor has a personal right against the debtor.
A specific definition:
A legal bond exists where a debtor has a duty to preform for the creditor, who has a
personal right against the creditor to enforce the performance.
A obligation binds the debtor to the creditor to preform, give or do something. This
duty grants the debtor a personal right against the debtor to preform.
Origin
Obligatio is vinculum iuris, which is a legal bond, but the concept of obligatio
originated from the physical bond, which is a vinculum facti.
When one party wronged another, they should make good? Originally grabbed and
sometimes killed, but later the idea of penalty payment was developed.
Next development was state intervention.
1. Manus injectio was invented, in which the debtor could be chained and jailed
to encourage payment of their debt
2. The perpetrator could avoid justice by paying their debt, first with cattle and
then with money
a. If no debt was paid then the manus injection was instituted
b. Perp was held in private jail with 15 pound chains
c. They had to be displayed in the market place for 3 consecutive days to
encourage someone to pay the debt
d. If no one paid could be sold across the river outside the bounds of
rome
, e. Could be killed by throwing the debtor off of the rock, and sometimes
their body was sold to satisfy the debt
f. Or, if co-ownership, then the debtor could be cut into pieces to satisfy
the debt
g. The idea was that the family would pay the debtors debt out of fear of
being haunted
How did the physical bond develop into a legal bond?
Theis process was being abused by the wealthier partrians exploiting the plebs. The
class struggle brought the practice to an end. Developed into a process where the
debtor had to work off the debt, so manus injectio was developed.
Romans realized liability would be useful in more situations, such as ensuring the
payment of a loan.
Despite the development of obligatio to a legal bond, it retained its intensely
personally character
1. Couldn’t create an obligatio for a third party
2. Obligatio could not be transferred
3. Obligatio ended with death of debtor
Obligationes ex contractu – Nexum and Sponsio
Obligatio was a legal bond with an economic content. This included contractus and
delictum. Contractus was an agreement enforceable with a personal action, while
delictum was an unlawful act that caused harm that gives rise to a fine or payment of
damages.
These two were not sufficient and led to the establishment of other forms of obligatio.
This was developed into quasi ex contractu and quasi ex delictum.
Oldest forms of ex contructu (Nexum and Sponsio)
Very old obligations, recognized during the XII tables and were only available to
roman citizens.
Nexum
,Nexum was essentially an obligatio establishing a money loan. There was a primitive
idea that the bond between the parties was established through the form that the
transaction took place. To establish this obligatio, a very formal procedure had to be
followed, including publicity for the debt to be acknowledged and some form of public
show.
The parties involved:
- The creditor, who muttered a formula (Nuncupatio)
- The debtor to establish the nexus
- The libripens, the person with the scale who would measure the money
- 5 adult roman citizens as witnesses
The process of establishing a nexum between a creditor and a debtor had to occur
per aes en libram, meaning with copper and bronze, with a person holding a scale
and in front of 5 adult roman citizens as witnesses
- Originally had to be unminted copper or bronze coins that had to be weighed
by the person holding the scale
o Later coins were counted and handed over
- The creditor stated that the copper/bronze and scale tied the debtor to him
- If the debtor failed to pay, they could be taken through the manus injection
- No further process was needed in detaining the debtor as 5 witnesses had
seen the commencement of the obligatio
- Mere payment did not end the nexum, a further ceremony was necessary.
Development of Nexum
- Initially unminted copper/bronze, later coins could be used
- The time and place of payment could be stated in the contract
- Interest could be added
Effect: The debtor could be subjected to manus injection if he did not pay. In
exchange for the money, the debtor pledged their own body. The watering down of
the manus injection led to the fading away of the nexum in roman law, which was
replaced by a more informal matuum.
, The establishment the nexum led to the creation of the debt extinguishing ceremony,
the solutio per aes et libram (payment through bronze or silver)
- Debtor handed over the silver/bronze to the person with the scale, which was
weighed, in front of 5 adult roman citizens. He muttered the phrase that he
was relived of the debt
- The debtor would hand over the bronze/silver to the person holding the scale,
in front of the 5 witnesses, and would mutter that this payment freed him of
the debt
- This form of payment remained until the classical period
Sponsio
Sponsio was the precursor to the stipulatio
- Sponsion was concluded by asking a question and receiving a immediate
corresponding answer
- Contract was concluded by a verbal question and answer
- The prospective creditor asked the prospective debtor if he promised to
preform, which he confirmed in the positive by promising to do so.
Unsure of the origin if a binding court oath or a sacred nature. Later was watered
down and became stipulation.
The concepts agreement, contractus and pactum, Development of pacta
Romans had a closed system of contracts, known as law of contracts, were only
certain contracts were recognized, and had to comply with certain requirements to
be valid, so they did not recognize freedom of contract.
South African law has freedom of contract, in which contracts do not have to meet
certain requirements in order to be recognized, meaning it is an open system, with
full freedom of contract.
Based on this closed list of contracts the question raised is: What occurs when two
parties had an agreement but did not establish a contractus? This is the distinction
between a pactum and a contractus.
A contractus is an enforceable agreement, a pactum is an unenforceable agreement
