Comparative Analysis: Roman Law of Obligations and Modern Contract Law

This report provides a comprehensive analysis of the Law of Obligations, beginning with an exploration of its fundamental principles and classifications, including moral, natural, and civil obligations, as well as obligations of means and result. It then delves into the historical origins of contract law, tracing its evolution from ancient Roman law, examining key concepts such as pactum, contractus, offer, and acceptance, and comparing them with modern legal frameworks. The report highlights the influence of Roman law on contemporary contract law through cases like Entores Ltd v Miles Far East Corporation. It also examines the law of torts, comparing Roman delicts with modern tort law, and explores the concept of vicarious liability. Finally, the report emphasizes the importance of understanding the historical development of the law of obligations in appreciating the influence of contextual factors on its evolution, including a review of relevant literature.

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Student’s Name
Professor’s Name
Course Name
Date
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).

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right to claim, it was they who established civil obligations. From the sources of law, we see that
Roman lawyers distinguished between two types of agreements: pactum or pactio in the
technical sense of the word and contraction7.
Example of modern contract law is Entores Ltd v Miles Far East Corporation. This
contract law borrows most of its principles from Roman contract law. In both cases, both the
future debtor and the future creditor could initiate the conclusion of the contract. A proposal to
conclude an agreement on certain conditions (propositio) was called an offer, and consent to
conclude it on the proposed conditions was called an acceptance8. In the current law, offer is
commonly termed as an agreement. In addition, like the Roman law, the offer (or agreement)
should be sent to a specific person and contain all the essential terms of the contract. The
acceptance should not contain new terms of the contract, as in this case it will be a new offer.
There are also several essentials of contract that are common in both the Roman and modern law.
The first essential common for both is the agreed will of the subjects of the contract. In both, the
will of the parties to the contract should be aimed at performing the same actions with respect to
the same subject9. Only then will the parties' will (expressed outward will) be agreed. The forms
of expression of will were different: verbal, written, by means of gestures, sometimes by silence,
as well as by hidden actions.
However, the difference is the way the communication between the two parties is done.
Unlike the ancient laws, the use of instant communication is the central issue being addressed in
Entores Ltd v Miles Far East Corporation. Nevertheless, the same law concluded that the
7 Nicolae, Ioana. “A Comparative Analysis Regarding the Obligation of Result and the Obligation of Conduct (Of
Means) in Civil Law.” Bulletin of the Transilvania University of Brasov. Series VII: Social Sciences. Law, 7, no. 1, (Jan.
2014):155–162
8 Birks, Peter, and Eric Descheemaeker. The Roman Law of Obligations (Oxford: Oxford University Press, 2014).
9 Monaghan, Jake. “The Special Moral Obligations of Law Enforcement.” Journal of Political Philosophy, 25, no. 2,
(June 2017): 218–237.

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contract is only complete when the acceptance is received by the offeror; and the contract is
made at the place where the acceptance is received. Similar situation is evidenced in
Pharmaceutical Society of Great Britain v Boots Cash Chemists Ltd
A tort (delicta) is an offense, a wrongful act. In Roman law, delicts were divided into
delicta privata (private) and delicta publica (public). They differed from each other by the object
of encroachment and sanctions applied to the delinquent. Public criminal acts were directed
against the interests of the state. They entailed physical punishment up to the execution of
violators or a fine in the income of the state. Private delicts are encroachment on the interests of
private individuals. They entailed damages or a fine in favor of the victim. Therefore, they were,
as already mentioned, the source of obligations10.
Example of modern law of tort is the case between Viasystems (Tyneside) Ltd v Thermal
Transfer (Northern) Ltd. The law covers the Tort of Vicarious Liability. This law is just but
modification of the Roman law. For example, in both the modern and Roman law, the elements
of private delicts were: committing any external action, in the classical law - also refraining from
any action11; the presence of consequences resulting from actions or inactions; the presence of a
causal relationship between the committed actions (inaction) and their consequences; the
unlawfulness of the actions committed and the damage caused by these actions; the guilt of the
person who committed the wrongful act in the form of intent12.
The only difference is that in early law, only obligations due to tort ended in simple
execution (reparation of harm). In order to terminate obligations under formal contracts, equally
10 Arvind, T T, and Jenny Steele. Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal
Change (2012).
11 Butler, Oliver. “Obligations Imposed on Private Parties by the GDPR and UK Data Protection Law: Blurring the
Public-Private Divide.” European Public Law, 24, no. 3, (Sept. 2018): 555–572
12 Kramer, Adam. The Law of Contract Damages. (2017).

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formal actions were required that accompany actual execution (if something was received in the
order of mancipation, then it could be returned only through mancipation). In order to avoid
possible injustices associated with this requirement of civil law, the forgiveness of obligations in
court at the stage of bringing a claim has become a practice13. However, in Viasystems
(Tyneside) Ltd v Thermal Transfer (Northern) Ltd., the court ruled that even if employee
committed a tort, the employer can still be held liable because the test of employment hinged on
the capacity to control.
Part C
Evidently, from the analysis, it is apparent that the modern laws are just but modification
of the ancient laws such as Roman laws. I believe that studying the historical origin of law of
obligation will not only help us understand the specific elements that are being emphasized but
also help us appreciate the influence of the contextual historical, social and economic factors on
the development of law.
13 Zheng Tang. “Law Applicable in the Absence of Choice – The New Article 4 of the Rome I Regulation.” Modern
Law Review, 71, no. 5 (2008): 785–800.

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Bibliography
Arvind, T T, and Jenny Steele. Tort Law and the Legislature: Common Law, Statute and the
Dynamics of Legal Change. 2012.
Birks, Peter, and Eric Descheemaeker. The Roman Law of Obligations. Oxford: Oxford
University Press, 2014.
Butler, Oliver. “Obligations Imposed on Private Parties by the GDPR and UK Data Protection
Law: Blurring the Public-Private Divide.” European Public Law, 24, no. 3, (Sept. 2018): 555–
572
Ibbetson, D J. A Historical Introduction to the Law of Obligations. Oxford: Oxford University
Press, 1999.
Jooho Lee. “The Entrepreneurial Responsibilities Test.” Tulane Law Review, 92, no. 4, (Apr.
2018): 777–835.
Kramer, Adam. The Law of Contract Damages. 2017.
McGinn, Thomas A. J. Obligations in Roman Law: Past, Present, and Future. , 2012.
Monaghan, Jake. “The Special Moral Obligations of Law Enforcement.” Journal of Political
Philosophy, 25, no. 2, (June 2017): 218–237.
Mousourakis, George. Fundamentals of Roman Private Law. Heidelberg: Springer, 2012. Print.
Nicolae, Ioana. “A Comparative Analysis Regarding the Obligation of Result and the Obligation
of Conduct (Of Means) in Civil Law.” Bulletin of the Transilvania University of Brasov. Series
VII: Social Sciences. Law, 7, no. 1, (Jan. 2014): 155–162
Steele, Jenny. Tort Law: Text, Cases, and Materials. , 2014.
Zheng Tang. “Law Applicable in the Absence of Choice – The New Article 4 of the Rome I
Regulation.” Modern Law Review, 71, no. 5, (Sept. 2008): 785–800.

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