Dare facere praestare oportere
The essential element of an obligation in developed Roman law, therefore, was the fact that the debtor was directly bound to make performance. The performance which was owed could take the form of dare facere praestare—"[o]bligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum":[21] dare referring mainly to the transfer of quiritary ownership,[22] facere comprising all kinds of acts (including a dare) as well as omissions, and praestare vaguely implying a guarantee for a certain result.[23] As one can see, these terms overlap; they date back to a time when one was not too particular about clear-cut conceptual analysis.
They had been taken over from the procedural formulae as terms of substantive law to describe the possible content of an obligation;[24] since Roman law was an actional law, it mattered little whether an agreement was to be regarded as binding if no suitable procedural formula was available to enforce it: only where there was a remedy was there a right ("ubi remedium, ibi ins"). This remedy, in the case of obligations, was always an actio in personam: the plaintiff was not asserting a relationship between a person and a thing (in the sense that he could bring his remedy against whoever was, by some act, denying the plaintiffs alleged right to the object in question—that was the crucial point in an actio in rem), but rather a relationship between two persons; the plaintiff set out to sue the particular defendant because he, personally, was under a duty towards him, and not because (for instance) he happened to be in possession of some of the plaintiffs property. If one translates this into the language of substantive law, one can say that the law of obligations is concerned with rights in personam, whilst rights in rem are the subject matter of the law of property.[25] This is what Paulus emphasized in the fragment quoted at the beginning of this paragraph.5.
More on the topic Dare facere praestare oportere:
- "Si paret... dare oportere"
- Certain rem dare obligations
- Walker B.. Selected Titles from the Digest. Cambridge: At the University Press,1881. — 190 p., 1881
- INTRODUCTION.
- 1. Praestatio eius quod debetur
- Table of Contents
- The framing of the stipulation
- Other types of obligations stricti iuris
- 1. Breach of contract in Roman law
- 2. Condictio ex causa furtiva
- Internal Organisation: How Are Obligations Arranged?
- Pacta ex continent adiecta
- Freedom of contract and its limitation
- Requirements of mora debitoris (ius commune)
- 2. The procedural framework for set-off in Roman law
- Actions with a formula incerta