Obligations

 Deals with situations where a person has incurred personal liability for which he/she is
answerable by law.
 Deals with rights and duties in personam, not in rem.
 These rights are enforceable because of a pre-existing relationship or link between the person
alleging the right and the person alleging he/she has a corresponding duty.
 Obligatio normally connotes a duty
 In the legal sense, it encompasses both a duty and a corresponding right to enforce performance.
There are two possible definitions:
1) An obligation is a legal bond, a iuris vinculum whereby we are constrained by the need to
perform something according to the laws of our state
2) The substance of obligations does not consist in giving us ownership of something, or a servitude
but in binding someone to us to give, do or perform something.
These definitions only focus on one party whereas obligations entail a relationship between two parties.

 Today, an obligation means a duty to pay or do something and a liability to do it. In early Roman
law the duty and liability were not necessarily combined.
 In the late Empire, civil liability was enforced.

Enforcement
 Until the late Empire, the creditor took the law into his own hands and would threaten to wreak
vengeance upon his hostages
 The word obligatio comes from ligare (to bind or to be)
 In early Roman law the notion of obligation literally meant physical bondage, and the word for
payment was solutio (to loosen/loosening)
 Eventually both terms were only used in the metaphorical sense
 We still consider the classical definitions because the emphasis on the relationship aspect was
missing and they seem to ignore the right and the holder of the right.
 What they do emphasise: a vinculum (between a debtor and creditor)
 Duty to act, imposed on at least one party

 An obligation is a creation of civil law, enforceable only by actions recognized by civil law

How Obligations arise

Contract
 Natural obligations from an agreement between two parties
 There is a tendency to treat contractual liability as a principle source of an obligation

Delict
 Essentially a unilateral act, wrongful and damaging, which incurs a duty to compensate a victim
in a civilized legal system.
 Rarely against the state, generally against an individual person (hence, actions in personam)

 Unjustified enrichment - When enriched unfairly

Obligations have two-fold consequences

1) A duty arose on the part of the person incurring the obligation
2) The corresponding right of the other person to enforce that duty
A person’s right to enforce performance is seen as an asset, for the plaintiff/holder of the right.

Example

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A (company) B (R10 000)
C (R1000)
D (R500)
E (R25 000)
A has a right to enforce performance from B, C, D and E is in its favour.
It is regarded as creating a personal relationship between the parties. Third parties were not affected.

In early law, an obligation lapsed when the party subject to it died (in respect to delict this did not change)
In contract, there was a gradual change to allow heirs to enforce their rights

Example

res
A B
money
A B

If B had paid then dies, in early Roman law B’s heirs could not claim the res from A
If B had not paid and died, in early Roman law A had no claim for the money, but in later law A did have
a claim.

Justinian classified obligations in 4 categories

1) Contracts
2) Quasi-contracts
3) Delicts
4) Quasi-delict
Zimmerman gives a critique, saying that there was no reason for this, except that four was an important
number in Roman law.

Law of Contract
Promissee – person who is being promised something (usually has a right)
Promissor – person who promises to do something (usually has a duty)

There are certain recognized types of contracts

Contractis verbis – these are contracts created by reciting certain words
Contractis rei – entered into by handing over the subject matter of the contract
Contractis consensus – these were based on agreement and developed in later law, they were concluded
by agreement as to particular terms
Contractis literis – contracts recorded in a particular way such as entries in books of account

TYPES OF CONTRACTS
1) Verbal contracts (stipulatio)
2) Real contracts (mutuum, commodatum, depositum, pignus)
3) Consensual contracts (emptio venditio, locatio conductio, societas)

The general feature of Roman contracts

 Law of discreet transactions
 Lacked a fundamental lying principle

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  There was no unification between them other than the necessity for an agreement
 Each remedy had its own distinct rules
 In early Rome, the law revolved largely around a single contract and that was stipulatio
 Later, it became known as the ‘law of contracts’
 Justinian’s classification of obligations was contract, quasi-contract, delict and quasi-delict.

VERBAL CONTRACTS (contractis verbis)

 Pronouncement of particular words in a set form which created the obligation
 There are 4 types of verbal contracts: dodis, dictio, userendum libertae and stipulatio, only
stipulatio will be focused on.

Stipulatio
 A type of contractis verbis
 This was the type of contract that imposed an obligation on a person because he has answered in
set terms, a question by the promisee.
 The contract imposes an obligation because it is answered in set terms
 It is a unilateral contract as the parties are bound by everything that they promise.
 Only one party has a duty, the other has a right
 It developed from sponsio which was a religious ceremony and because of religious origins it
fully developed when the religious associations faded.

REQUIREMENTS
1) Both parties must be present
2) There must be a formal question from the promisee
3) There has to be a formal answer from the promisar
4) The question must contain the subject matter of the stipulatio
5) Formal words: spondesne and spondeo
6) Verbal answer from the promisor

History
 It originated before the Twelve Tables
 Early law: the use of stipulatio was limited and in later law (before the Republic) it could only be
used for any agreement
 Republic: the use of spondesne and spondeo (promise) was relaxed and people could use dabesne
and dabo (Will you give? I will give) and promittisne and promitto (do you promise? I promise)
 Late Republic: cautio (the written word) began to be used to record that question and answer
form had been followed.
 Classical period: Latin was not necessary either, any languages could be used as long as both the
parties understood. Greek could be used too.
 Late classical period: cautio would only contain the answer because if there was a written record
it was assumed that the answer followed a specific question.
 Empire: cautio was used widely but oral agreements without cautio were still valid.
 Late empire: when emperor Leo (472 AD) was in power he relaxed the formalities and so no set
words were necessary as long as the intentions were clear. Hence the need for questions and
answers fell away.
 Justinian: (1) Any language could be used as long as both parties understood, even two different
languages; (2) set words no longer had to be used; (3) no need for formal congruence (dabisne
could be answered with quidni-certainly) and (4) the parties had to enter into the contract in each
other’s presence

 A lengthy practice could be constituted by a series of stipulations

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  A prudent party would ensure there were several witnesses, however this was never a legal
requirement.

REMEDIES
Stricti iuris (strict liability) – if the promisor did not perform, the following could take place:
1) If the stipulatio contained specific subject matter it was known as condictio (contained a specific
thing). It was very convenient because it did not have to state the basis for liability in the formula.
2) If the stipulatio was not for a specific thing, actio ex stipulatu was used and it required the basis
for liability to be stated in the formula.

CLASSIFICATIONS
Based on the source of the obligation

1) Simple stipulatio
 Used most often. Obligations arose immediately and unconditionally.
 The promisee could demand performance at once.
 “Do you promise to give me 5 sesterces? I promise to give you 5 sesterces”

2) Stipulatio subject to a dies

 The obligation arises at once but it cannot be performed or enforced until a specific time or event
has occurred (a condition)
 The promissor may elect to perform earlier
 “Do you promise to give me 10 sesterces on the Kalends of August? I promise to give you 10
sesterces on the Kalends of August.”

3) Conditional stipulatio
 The obligation to perform may never arise
 The condition must be fulfilled first, before the obligation can be fulfilled
 “Do you promise to give me your horse if you buy a new horse?” – did not give rise to an
actionable obligation but only to a spes (hope)

4) Resolutive condition
 A negative condition/criterion, defining the termination of an obligation
 A promises B to give him his horse if Justinian did not become emperor, so he must give B the
horse until Justinian becomes the emperor (not – negative).
 If the condition related to an event which had already happened unknown to the parties, it did not
delay the formation of the obligation:
1. If the condition had not been fulfilled (and parties were ignorant as to whether or not it
had), stipulation was void.
2. If it had been fulfilled the stipulation was immediately effective

It could also be void if

- It was impossible ab initio (selling a slave who is dead)
- Two promises to whom performance is promised
- Parties not in exact agreement
- Impossible condition added to the stipulation
- Stipulatio to give something after one’s death (pactum successorium)

Examples
 A may continue to use B’s textbooks until A passes the course  resolutive condition
 If South Africa gets into the final, C will give D R20 000  conditional stipulatio
 If X gets firsts for all his subjects, his parents will transfer a car into his name  stipulatio
subject to a dias (X may only demand performance if he meets the condition)

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  Y buys a bottle of water from Z and takes the bottle immediately  simple stipulatio

REAL CONTRACTS (contractis rei)

 This occurs by the delivery of a res (this is not the transferal of ownership, these contracts are
personal rights).
 Can only enforce this personal right because of a contract (contract is a right to something…)
 Cannot enforce it against anyone outside of the contract – only the parties to the contract

A B C

D E

E can only get money from D, not from A, B and C who owe D.

Real contracts were frequently used for money

Real contracts are created by an agreement and the delivery of a corporeal thing from one party to
another.
This was the only common denominator among the four categories of real contracts:
1) Mutuum
2) Commodatum
3) Depositum
4) Pignus

1) Mutuum
 A gratuitous loan of fungibles to be used for consumption
 Fungibles – something that can be used up such as a food substance. It is destroyed through
usage. Money is also a fungible, although strictly speaking it is not “consumed”. Nicholas
describes fungibles as things belonging to a class all the members of which are identical or
sufficiently similar to be freely interchangeable”.
 Unilateral contract (only one party has a duty), and gave rise to iudicium stricti iuris.

Requirements
 Strict application of rules and duties (iudicium stricti iuris contract)
 Only one party incurs duties, other party has rights
 The fungible must be measurable and consumable
 Must be gratuitous (the promissor must not expect anything) and so cannot charge a fee or
interest

Duties
 Only one party has a duty (borrower)
 There are no duties on the lender, only on the borrower because the duty is to restore not the exact
thing but an equivalent size, number or quality of the thing

Remedies
 Actio certae pecuniae creditae – repayment of money loaned
 Condictio certae rei – for return of other things (if A has been lent something and it has not been
restored by B)

Interest
 Interest was notallowed to be charged unless the lender was a businessman, such as in the food-
lending business, however often stipulatio was entered into to determine interest

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  Could not charge compound interest (interest on the new amount not the principle amount)

Money-lending
 There were problems because it led to abuse, therefore it was subject to Sc Macedonianum, which
provided that an action should be refused to one who lent money to a filiusfamilias.
 During the early Empire, restrictions applying to loans made to children and those under potestas
that protected the borrower and the paterfamilias. If an action was instituted, the defendant could
raise exceptio senatus consulti Macedoniani (having effect of precluding claim), this was also
available to paterfamilias sued in respect of his filiusfamilias.
The enactment did not apply (and hence lender could recover their money):
1) Where lender believed the borrower was sui iuris
2) Loan was for pater’s benefit
3) Loan was made with the paterfamilias’ consent
4) Filius was a soldier
5) Son became sui iuris and acknowledged his own liability.
 All other cases loan of money to a filiusfamilias gave rise to a natural obligation only.
 In later law, mutuum lost its importance as stipulatio was used.

2) Commodatum
 Gratuitous loan of a corporeal thing for use, but the thing itself had to be returned at the end of
the loan
 Bilateral contract (both parties had duties)
 If the very thing had to be returned, it could therefore not be fungible.
 The loan is usually made for a specific amount of time and purpose
 If duration was not fixed, it would be considered to be a reasonable time
 Therefore the loan was not for land or consumables.
 Ownership would not pass, the borrower (commodatarius) would have bare physical control
(detentio), not possession (because possession still requires intention/animus to become the
owner).

Requirements
1) Must be gratuitous
2) Lender did not have to be the owner of the thing
3) Must be in good faith (bona fides)

Duties
Lender (commodator)
1) To give or lend the thing
2) Allow the borrower to use it for the duration agreed, except if the item was misused the lender
could take that item back
3) If the borrower had to spend money for abnormal expenses the lender has to reimburse the
borrower
4) There is a duty under dolus (intention) if he knew about the defect

Borrower (commodatarius)
1) To maintain the thing while using it (restore before giving back)
2) The thing must be borrowed for a specific use (if used for purpose other than that authorized by
the lender, liable for breach of contract)
3) Must be returned on time
4) Must take care of the thing as a diligens paterfamilias, or a bonus paterfamilias (reasonable man)
otherwise he would be liable for culpa levis in abstracto. He must
5) If the thing was stolen or damaged by animals, the borrower would still have a duty to restore it
 Justinian’s time: the lender was given the choice to go after the thief or the borrower

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  He would not be liable for damage caused vis maior (superior force – act of God)
6) Main duty: return the res to the lender in the same condition as it was received.

Remedies
 Actio commodati – an action for loans by the lender. (1) This action is used if the lender is not
able to get his item back. (2) Also used if the lender incurred expense form the borrower’s use (if
borrower damaged thing and lender had to repair it)
 Actio commodati contraria – for the borrower to recover expenses incurred, such as if lender had
not informed borrower of faults with the thing
 Borrower had a second option available: if he spent more money that what the item was worth,
hey may keep it. Hence he could keep it if the expenses incurred exceeded the value of the thing.
Anything he overspent must be returned to the lender or it would be unjustified enrichment.

3) Depositum
 A gratuitous delivery of movable thing to a depositee for safe-keeping
 Bilateral contract (reciprocal duties) and gave rise iudicium bonae fidei
 Depositor – putting in / giving things
 Depositee – receiving the equivalent
 The depositee does not become the owner or the possessor, and the depositor does not have to be
the owner of that thing to make that deposit. The depositee would only have detentio.
 The contract is for the benefit of the depositor

Requirements
1) Depositee does not receive payment, it is gratuitous
2) Delivery is a specific requirement in this contract
3) Must be in good faith (bona fides)

Duties
Depositee
 Keeping the item safe, but this is dependent on the circumstances and how much safety is
required.
 Return the thing in substantially the same condition. It is not the exact same condition, to account
for a lapse in time
 Depositee will be liable for dolus and gross negligence
 If the depositor asks for the item back the depositee must return the item immediately on demand

Depositor
 Liable for negligence if did not disclose the fault
 Standard of care – the person making the deposit is a bonus paterfamilias. He must reimburse the
depositee for any expenses incurred. Example: if the horse damages the depositee’s stable, or
food bought to feed the horse.

Remedies
 Actio depositi directa – for depositor to get thing back
 Actio depositi contraria – for the depositee to get money or the thing back (usually when incurred
expenses)

4) Pignus
 Transfer of property as security/surety by the borrower to the lender by way of mortgage (today, a
pledge)
 Bilateral contract (gave rise to iudicium bonae fidei)

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 Principal contract
A B

A B

 A will buy horses from B but A cannot pay full amount so plans to pay 6 months of installments.
 A must give something that is the same value as the horses to B as security
 A will have to pay B a certain amount of money over time, over this A is not yet the owner, only
when the amount has been paid in full.
 The principal contract, or the pignus will only come into enforcement upon conclusion of the
second contract.
 Principal contract is a type of security: something that has the same value as the thing being
bought. B will not keep that security, only until A pays.
 Where the pledgor (debtor) owed money to the pledge creditor, he might hand over the res to the
pledgee who would retain it until the debt was discharged
 It was unlike the other real contracts as delivery of the res to the pledge gave him interdictal
possession: the creditor (pledgee) acquired possessio civilis(physical control and intention to
hold) and so was entitled to use possessory interdicts. Creditor had a real right to property
 Both pledgor and pledgee were liable in respect of damage caused as a result of culpa levis in
abstracto.
 Pledgee was not entitled to use res or profit by it. He had to restore possession of the res together
with any fruits or accretions to the pledgor when the debt was discharged.

Requirements
1) Pre-existing debt or principal contract
2) Good faith

Legal position of the Borrower

1) Liable for any damage cased to the thing
2) Standard of care: bona paterfamilias
3) Borrower could keep the thing until the debt was paid, if not paid, ownership would transfer

Legal position of the Lender

1) Standard of care: bona paterfamilias

Remedies
 Borrower - Keeping the thing until the principal debt is paid

The only common denominator in real contracts is delivery and agreement/acceptance