Obligation

The Latin word obligare (to bind) was first used by the early Roman playwright Plautus (c. 254-184 bce) in his plays Truculentus (at 214) and Bacchides (at 748). Much later, Cicero (Ad Brutum 1.18.3) used the word as a noun: obligatio.

In his Institutes (3.13pr.), Justinian famously defined the obligation as a “legal tie that binds us to the necessity of making some performance according to the laws of our state.”

Obligation referred to both the creditor’s right (and action) and the debtor’s duty: it was the duty enforceable by an action in personam. Obligation established a legal relation between two bound persons, the creditor and the debtor. A creditor, from credere (to trust), is anyone to whom anything is due by a debtor for any ground (Gaius, D. 50.16.11). A debtor is anyone who has the legal duty to perform something to the benefit of the creditor and, as a result, has a potential liability. The creditor believed (credere) that the debtor

The law of obligations: contracts 181 would accomplish the act that was due, and had a personal claim against the debtor.

Paul put it well: the essence of obligation does not consist in the fact that it makes someone property, but in the fact that it binds another person to give (dare) or do (facere) or perform (praestare) something (D. 44.7.3pr.). Dare refers to the transfer of civil ownership; facere involves all kinds of acts as well as omissions concerning the performance of obligations; praestare means to be a guarantee, and it vaguely refers to any liability beyond dare and facere. The main feature of the Roman obligation was its strictly personal character. This explains why Roman law did not recognize, in general, contracts in favor of third parties, cessions of rights and actions (assignment), and direct agency.

The liberation of the debtor from his obligation by performance of what he had undertaken to do was called solutio in classical law.

The most usual form of performance of an obligation was by payment. Payment had to be made in full, together with accessories (e.g., fruits), at the agreed upon time and place, and to the creditor or his authorized representative (e.g., tutor, mandatary, and cashier). If the obligation was divisible (e.g., a payment of money), the creditor could accept partial payments. If the obligation was indivisible (e.g., constitution of a predial servitude), only substantial performance would do. The creditor might also accept a substituted performance, such as the payment of a jar of oil instead of money (Gaius 3.168: “aliud pro alio”). The payment could be made by a third party and even without the debtor’s knowledge or against his will (Inst. 3.29pr.), except when it was a strict personal obligation and it mattered who made the performance (e.g., when a singer would be hired for a party).

Delay in the performance of an obligation was called default (mora debitoris). In the case of wrongful default, the debtor was liable for accidental destruction of the thing involved in the obligation, and if the obligation consisted of a money debt, he was liable for interest. When the creditor refused to accept the payment (mora creditoris), the debtor could deposit the payment in a public place (the court or a temple), and he would be released since he had paid.

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Source: Domingo Rafael. Roman Law: An Introduction. Routledge,2018. — 252 p.. 2018

Obligation

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