The term obligation (obligatio) denoted the legal relationship that existed between two persons, in terms of which one person was obliged towards the other to carry out a certain duty or duties.

Obligation may otherwise be defined as a bond recognized by the law (iuris vinculum) in terms of which one party, the creditor (creditor), had a personal right (ius in personam) against the other party, the debtor (debitor).

It is important to emphasize that the person who bound himself to another as a debtor placed an obligation on only himself and thereby gave the creditor a right against himself, while third parties did not become involved. If the obligation was not properly discharged, the creditor could institute a personal action (actio in personam) against that particular debtor with a view to obtaining a judgment that could be executed against such debtor. With this personal action the creditor claimed that the debtor had to perform something for the creditor, i.e. give something to the creditor, do something for him or refrain from doing something.^{^[364]}

Gaius, in his Institutes, states that obligations fell into two principal categories: obligations arising from contract (obligationes ex contractu), and obligations arising from delict (obligationes ex delicto).^{^[365]} The term contractus was understood to denote any lawful juristic act capable of producing rights and obligations, and enforceable by means of an action at law. As the vast majority of lawful juristic acts creating obligations were transacted because there was agreement on the part of the parties to establish an obligation, it was in time recognized that agreement (consensus) was the essence of a contract. The delictum was an unlawful act (also referred to as maleficium) that was detrimental to the lawful rights and interests of another person and which generated an obligation between such person and the malefactor. The content of such obligation was directed at satisfaction, compensation or a penalty (poena).

Gaius’ original dichotomy of the sources of obligations was subsequently deemed unsatisfactory, since an obligation could also arise from a legal act with respect to which there was no agreement on the part of the parties concerned. Accordingly, a third category of obligations (also attributed to Gaius) appears in the Digest: obligations arising from various causes (obligationes ex variis causarum figuris) other than from contract or delict.^{^[366]} The phrase variae causarum figurae refers to juristic acts that were not based on agreement, yet were deemed wholly lawful. Gaius’ final classification was probably the precursor of the fourfold division of the sources of obligations adopted by the compilers of Justinian’s Institutes. According to the latter scheme, an obligation may arise: (i) from contract (ex contractu); (ii) as if from contract (quasi ex contractu); (iii) from delict (ex delicto or ex maleficio); and (iv) as if from delict (quasi ex delicto or quasi ex maleficio).^{^[367]} The term quasi-contract was used to denote those lawful acts that, although not based on agreement between two or more parties, created an obligation. In contrast, the category of quasi-delict did not differ substantially from that of delict.

A further classification of obligations, recognized from an early period, was that between obligationes civiles and obligationes honorariae or praetoriae. The former derived their authority from the ius civile and could be enforced by means of actiones civiles, i.e. actions originating from the civil law. The obligationes honorariae, on the other hand, arose from the ius honorarium and were enforceable by means of actiones honorariae, i.e. actions created by the praetor and other jurisdictional magistrates.^{^[368]} In this connection reference may also be made to the distinction between obligations of the strict law (obligationes stricti iuris) and obligations based on good faith (obligationes bonae fidei).

An obligatio stricti iuris arose from a legal act of the strict and formal ius civile. An obligation of this kind was enforced by means of an actio civilis and in such a case the judge was bound by the strict letter of the law. An obligatio bonae fidei, by contrast, derived from a legal act based on good faith (bona fides) and was enforced by an actio bonae fidei, i.e. an action whose procedural formula required the judge to take the requirements of equity and good faith into consideration. Finally, a distinction was drawn between obligatio civilis in a wider sense and ‘natural obligation’ (obligatio naturalis). Obligatio civilis was an obligation arising from a recognized legal source and enforceable by means of an actio in personam. On the other hand, the term obligatio naturalis denoted an obligation that was only imperfectly protected by law. Such an obligation was not normally enforceable by an action at law and, in the event of an action being granted, execution was not possible. This fact does not mean, however, that natural obligations had no legal significance whatsoever. Thus, it was possible for a person obliged in terms of a natural obligation to perform such obligation or to subject it to personal or real security. Natural obligations were, for example, those contracted by a slave, or by a filiusfamilias under paternal power, or by an impubes or a minor without the consent of his tutor or curator respectively.

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Source: Mousourakis G.. Roman Law and the Origins of the Civil Law Tradition. Springer,2015. — 339 p.. 2015

The term obligation (obligatio) denoted the legal relationship that existed between two persons, in terms of which one person was obliged towards the other to carry out a certain duty or duties.

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