Law of Obligations Part A Law of Obligations

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Law of Obligations
Part A
The law of obligations is the branch of private law in the systems of Roman-Germanic
tradition which deals with obligations. The obligation results either from a legislative or
regulatory provision, or from an agreement or contract, which is defined as a legal relationship
between two or more persons by which one person commits himself to another to do (or not to)
not do) something, either of a criminal or civil fault (quasi-contract)1. Conventions can only be
concluded in areas where public policy provisions do not already exist, they must follow rules of
formalism and they impose obligations only on the contracting parties, except if they have been
published in the legal forms, which makes them opposable to third parties.
Obligation is a legal bond between two or more persons by which one person binds
himself to another to do (or not to) or to give. The parties to the bond report are: a creditor, who
has a right of claim against the debtor, namely the benefit of a benefit; and a debtor, who owes a
debt to the creditor, and who owes that debt on the entirety of his assets, except exempt
property2.
1 Ibbetson, D J. A Historical Introduction to the Law of Obligations. (Oxford: Oxford University Press, 1999).2 McGinn, Thomas A. J. Obligations in Roman Law: Past, Present, and Future. (2012).

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This subjective connection between the creditor and the debtor has several
characteristics: it is a patrimonial link, which incorporates the assets of the creditor and the
liabilities of the debtor, and is vested by the effect of the estate; it is also a personal right, relating
to the property of others, as opposed to real rights, relating to a thing; it is subject to compulsory
execution, whether the obligation is civil or commercial.
When a synallagmatic contract is concluded, each of the parties will be charged with a
number of obligations3. Thus, each party will have both debtor and creditor status, on different
obligations. For example, in a contract of sale, the buyer will be debtor of the obligation to pay
the price and creditor of the obligation to issue the thing when the seller will be creditor of the
obligation to pay the price but debtor of the obligation to deliver the thing sold4.
There are several categories of obligation. Obligation can be classified based on nature
(moral obligation, natural obligation and civil obligations)5. It can also be classified according to
their source and object and means or purpose. The obligation of means requires the debtor to
make every effort to fulfill the promised benefit, or to achieve the expected result, without
however guaranteeing it. The debtor can not therefore be held responsible for the dissatisfaction
of the creditor given the vagaries. Thus, the doctor is bound by an obligation of means towards
his patient: he has the duty to do everything possible to cure him, but can not be held responsible
for the therapeutic failure (except for his fault).
On the other hand, performance requirements require the debtor to achieve a certain
result, on pain of sanction. The absence of result will necessarily incur the contractual liability of
the debtor, except in cases of force majeure. Thus, the carrier's obligation of result is to move
3 Mousourakis, George. Fundamentals of Roman Private Law (Heidelberg: Springer, 2012).4 Jooho Lee. “The Entrepreneurial Responsibilities Test.” Tulane Law Review, 92, no. 4 (Apr. 2018): 777–835.5 Steele, Jenny. Tort Law: Text, Cases, and Materials (2014).

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people or goods. Any delay, or damage inflicted on the persons and goods transported will incur
the contractual liability of the carrier. Obligation have both social and economic purpose. The
bond unites several people, and participates in the formation of the social bond. It helps to ensure
the cohesion of the social body, and the solidarity of its members, particularly in terms of
damage caused to others (extra contractual liability). The obligation is also an instrument of
control of social behavior, because the illegality of the obligations is source of nullity. The
causes of illicitness are determined by the social body, and the parties can not derogate from the
rules of public order. Concerning economic purpose, obligation and property rights are closely
linked: it is through the creation of an obligational link that one can most of the time gain access
to the property. The economic purpose of the obligation therefore lies in its ability to allow
transfers of ownership, thus the movement of goods and merchandise.
Obligation can be enforceable or unenforceable. Moral obligations, for example, are not
legal obligations. The natural obligations, on the other hand are morally binding, but can not be
legally sanctioned. However, civil obligations are legally binding, and are subject to forced
execution
Part 2
In the most ancient time, at an early stage of the development of society, there was no
such thing as "every contract in itself creates an obligation between the parties. And only when
the state has established a guaranteed responsibility for the violation of known types of contracts,
a duty arises. And the term "contractus" itself was not used in ancient Roman law in the meaning
of the source of the obligation6. The terms contrahere, contractus "only indicated the bonds of
obligation themselves, the obligation itself". Under Roman law, only some agreements gave the
6 Kramer, Adam. The Law of Contract Damages (2017).