INTRODUCTION
W e come now to the second division of the law of things, that which is concerned with obligations. ‘Things’, we have seen, are a man’s economic assets, and, in the language of rights, these assets are either what he owns or what he is owed; they are either rights in rem or rights in personam.
Rights in rem are the province of the law of property, rights in personam of the law of obligations.As a thing, therefore, an obligation is a right, but the term ‘right’ denotes only one side of the relationship which is embraced by the Latin term obligatio. To every right in personam there must obviously be a correlative duty: if A has a right that B shall give him a book, B must be under a duty to give A the book. The term obligatio denotes sometimes the right, sometimes (like the English ‘obligation’) the duty, but more properly it denotes the whole relationship. Thus, etymologically it signifies a tying together—the bond which unites creditor and debtor. It is a bond by which one party is bound, and the other entitled, to some act or forbearance, third parties being, in principle at least, unaffected.
Gaius classifies obligations under two headings. They arise either from contract (ex contractu} or from delict (ex delicto}. We may provisionally define a contract as an enforceable agreement, and a delict as a wrongful act which is not, or not exclusively, a breach of contract. Thus, if A agrees with B to buy B’s book, an obligation arises ex contractu'. B is under a duty to give A the book, and A is under a duty to pay B the agreed price, each duty having, as we have seen, its correlative right. And if C steals D’s book, an obligation arises ex delicto'. G is under a duty to pay D a penalty and D has a right to the payment of the penalty. Most obligations fell clearly into one or other of Gaius’ two categories, but there remained a certain number which did not. To accommodate these Justinian’s
Institutes added two further categories: they were said to arise either quasi ex contractu or quasi ex delicto, according as they had more affinity with one or other of the main categories. The justification for these categories will be considered later.
More on the topic INTRODUCTION:
- Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p., 2018
- Chapter 1 Introduction
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- Nicholas Barry, Metzger Ernest. An Introduction to Roman Law. Oxford University Press,1976. — 317 p., 1976
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