Unenforceable obligations ("obligationes naturales")

It has just been pointed out that obligations were enforceable by means of actiones civiles (or honorariae). There were some situations, however, where the creditor had no way of compelling his debtor to comply with what he had undertaken to do.

I am referring here to what has been known as "obligationes naturales"^[26] since the time of classical law: obligations contracted by slaves, children and women in power and debts owed to such persons, to mention the original examples. Sensu stricto, they are not obligations because they lack enforceability: persons in power could normally not be parties to a lawsuit; and where they could (sons in power in the position of a defendant), the other party could not proceed to execution under the judgment. On the other hand, we are not dealing with a case of invalidity: obligationes naturales were not legally irrelevant, but had certain secondary effects of an obligation. For instance, there was no reason why anything which had been performed in fulfilment of such a debt should be allowed to be claimed back:^[27] the receiver had not been enriched without legal ground because what was owed was, after all, a debitum (even though the claim was not enforceable). Furthermore, a naturalis obligatio could be the object of a novation,^[28] it could be used for a set-off against a claim of the debtor^[29] and, to secure its fulfilment, a pledge could be given or a surety provided.^{^[30]} In modern legal systems, too, the situation occurs that the law recognizes some effects of certain transactions, without, however, being disposed to assist the "creditor" in enforcing his right.^{^[31]} In South African law, the term "naturalis obligatio" is still used in these instances,^{^[32]} but the concept is known in substance even where, as in the German Civil Code, it has been abolished in name.

Yet, the type of transaction falling into this category has changed drastically. In the place of relationships affected by the paternal power over one of the parties we now find, to take the main examples in German law, the promise of a fee to a marriage broker^{^[33]} and gaming and betting.^{^[34]} These are transactions which the legislator has disapproved of—for reasons which, incidentally, seem to be a little outdated in the one case^{^[35]} and somewhat paternalistic in the other.^{^[36]} A situation similar in its practical result, but different as far as the legal construction is concerned, occurs where the period of prescription for a claim has expired. Here the creditor is entitled to claim (i.e. his right remains enforceable), but the debtor may refuse performance. Yet, once performance has been rendered, it may not be reclaimed.^{^[37]} German commentators generally do not fail to observe that this case cannot be brought under the concept

of an obligatio naturalis.^[38] The Romans, on the other hand, had no objection to extending the term to cases (as, for example, that of the senatus consultum Macedonianum) where an exceptio could be raised to bar the claim.^[39] That goes to show that historically here, as in many other areas, we are not dealing with a clearly definable terminus technicus: the classical Roman lawyers did not think in terms of neat and logical conceptual categories.^[40] Apart from that, the Corpus juris Civilis also contains texts of post-classical origin which are based on another understanding of the notion of an obligatio naturalis. They refer to merely moral or ethical and, in this sense, "natural" duties:^[41] where, for instance, a freedman has rendered certain services to his patronus which were not, in fact, legally owed ("condicere eum non posse, quamvis putans se obligatum solvit...: natura enim operas patrono libertus debet"),^[42] or where someone has returned somebody else's present.^[43] ^{^[44] Furthermore, to add to the confusion, Paulus sometimes spoke of naturales obligationes in a totally different sense; he used the term to refer to those (enforceable!) obligations which were not peculiar to the Roman ms civile (like the formal stipulatio) but based on the naturalis ratio and which were part, as such, of the ius gentium common to all peoples (as, for instance, the consensual contracts).⁴⁵}

Under these circumstances one can well understand that lawyers of later centuries, who were trying to analyse the concept of natural obligations on the basis of the Roman sources, sometimes tended to despair: "Sunt hac in re multae leges quae pugnant invicem, et est summus labor in eis adducendis in concordiam; fuit mihi olim maximus et diu in desperatione fui", as the humanist Cuiacius confessed.^[45] ^{^[46] ^[47] By his time, however, the discussion had become largely theoretical.}

Many of the classical Roman examples had become obsolete. Where an attempt was made to define a naturalis obligatio in the spirit of the Corpus Juris Civilis, if somewhat vaguely, as "quae solo nititur aequitatis naturalis vinculo,"^[48] the question immediately arose under which circumstances such an equitable or moral obligation was to be recognized. But since this was dependent on each individual sense of tact, morality and piety, general rules could hardly be established.^[49] If, furthermore, on the evidence of some centuries of discussion,^[50] one accepts that great caution is necessary not to generalize consequences and effects of natural obligations as far as accessory rights, compensation, etc. are concerned, the question may well be asked whether modern legislators have not been wise to abandon a makeshift term^[51] with such a notorious potential for confusion.^[52]

II.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Unenforceable obligations ("obligationes naturales")

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