Obligationes. The Origins and the Division thereof. The Roman Law of Obligation I Chair of Roman and Antique Law. University of Warsaw

Transcription

1 Obligationes The Origins and the Division thereof. José Luis Alonso & Jakub Urbanik The Roman Law of Obligation I Chair of Roman and Antique Law. University of Warsaw

2 [ ] The Roman Law of obligations is indeed a great and unique achievement in the history of human civilization. Schulz, Classical Roman Law p. 463

3 Obligation DEBT paired with RIGHT TO CLAIM IT DEBTOR CREDITOR How natural is this solution?

4 What is an Obligation? G. 4.2 In personam actio est, qua agimus cum aliquo, qui nobis vel ex contractu vel ex delicto obligatus est, id est cum intendimus dare facere praestare oportere A personal action is the one by which we sue the one, who has been obliged towards us either from a contract or from a delict, that is when we intend the he shall give, do, perform.

5 What is an Obligation? G. 4.2 In personam actio est, qua agimus cum aliquo, qui nobis vel ex contractu vel ex delicto obligatus est, id est cum intendimus dare facere praestare oportere A personal action is the one by which we sue the one, who has been obliged towards us either from a contract or from a delict, that is when we intend the he shall give, do, perform. Action Obligation

6 What is an Obligation? G. 4.2 In personam actio est, qua agimus cum aliquo, qui nobis vel ex contractu vel ex delicto obligatus est, id est cum intendimus dare facere praestare oportere A personal action is the one by which we sue the one, who has been obliged towards us either from a contract or from a delict, that is when we intend the he shall give, do, perform. Action Obligation

7 What is an Obligation? D pr. Paulus, 2. Inst.: Obligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum.the essence of obligations does not consist in that it makes some property or servitude ours, but that it binds another person to give, to do or to perform something for us.

8 What is an Obligation? D pr. Paulus, 2. Inst.: Obligationum substantia non in eo consistit, ut aliquod corpus nostrum aut servitutem nostram faciat, sed ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum.the essence of obligations does not consist in that it makes some property or servitude ours, but that it binds another person to give, to do or to perform something for us. Obligation Real Right

9 What is an Obligation? I pr. Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura.obligation is a legal tie, by which are necessarily bound to perform a certain thing according to the laws of our state.

10 What is an Obligation? I pr. Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura.obligation is a legal tie, by which are necessarily bound to perform a certain thing according to the laws of our state. Obligation Legal Order

11 What is an Obligation? I pr. Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura.obligation is a legal tie, by which are necessarily bound to perform a certain thing according to the laws of our state. Obligation Legal Order

12 The Genesis of an Obligation Factors in the Archaic Times:

13 The Genesis of an Obligation Factors in the Archaic Times: ILLICIT DEEDS (later: DELICTS/TORTS): REVENGE replaced by the system of penalties (codified in the Law of XII Tables)

14 The Genesis of an Obligation Factors in the Archaic Times: ILLICIT DEEDS (later: DELICTS/TORTS): REVENGE replaced by the system of penalties (codified in the Law of XII Tables) TALION & agreements on damages/ obligation to compensate

15 The Genesis of an Obligation Factors in the Archaic Times: ILLICIT DEEDS (later: DELICTS/TORTS): REVENGE replaced by the system of penalties (codified in the Law of XII Tables) TALION & agreements on damages/ obligation to compensate Table VIII 2. si membrum rup(s)it, ni cum eo pacit, talio esto. If one has maimed a limb and does not compromise with the injured person, let there be retaliation.

16 The Genesis of an Obligation Factors in the Archaic Times:

17 The Genesis of an Obligation Factors in the Archaic Times: LICIT ACTS (later: PACTS, CONTRACTS: NEXUM, FIDUCIA (transactions by scale and bronze) the debtor imprisoned though legis actio per manus iniectionem stipulatio guarantors in trial: vas (vades), praes (praedes)

18 The Genesis contind.

19 The Genesis contind.

20 The Genesis contind.

21 The Genesis contind. Schulds- und Haftungstheorie: Alois von Brinz

22 The Genesis contind. Schulds- und Haftungstheorie: Alois von Brinz DUTY versus LIABILITY

23 The Genesis contind. Schulds- und Haftungstheorie: Alois von Brinz DUTY versus LIABILITY Arguments in favour:

24 The Genesis contind. Schulds- und Haftungstheorie: Alois von Brinz DUTY versus LIABILITY Arguments in favour: Legal anthropology/comparative research: reine Sachhaftung

25 The Genesis contind. Schulds- und Haftungstheorie: Alois von Brinz DUTY versus LIABILITY Arguments in favour: Legal anthropology/comparative research: reine Sachhaftung Traces in Roman Law? natural obligation, nexum, fiducia, vades & praedes

26 A U L U S M A R C U S

27 A U L U S Money M A R C U S

28 A U L U S Money Duty to pay M A R C U S

29 A U L U S Money Duty to pay nexum M A R C U S

30 A U L U S Money Duty to pay nexum execution of nexum M A R C U S

31 A U L U S Money Duty to pay nexum execution of nexum Liability M A R C U S

32 Sources of the Obligations Illicit and Licit Deeds

33 Binomial division of the sources in the Institutions of Gaius G. 3.88: Et nunc transeamus ad obligationes. Omnis enim obligatio vel ex contractu nascitur vel ex delicto. And now we shall pass to obligations. Every obligation rises either from contract or from delict.

34 [1131a (1) ἓν δὲ τὸ ἐν τοῖς συναλλάγµασι διορθωτικόν. τούτου δὲ µέρη δύο: τῶν γὰρ συναλλαγµάτων τὰ µὲν ἑκούσιά ἐστι τὰ δ ἀκούσια, ἑκούσια µὲν τὰ τοιάδε οἷον πρᾶσις ὠνὴ δανεισµὸς ἐγγύη χρῆσις παρακαταθήκη µίσθωσις (ἑκούσια δὲ λέγεται, ὅτι ἡ ἀρχὴ τῶν συναλλαγµάτων τούτων ἑκούσιος, τῶν δ ἀκουσίων τὰ µὲν λαθραῖα, οἷον κλοπὴ µοιχεία φαρµακεία προαγωγεία δουλαπατία δολοφονία ψευδοµαρτυρία, τὰ δὲ βίαια, οἷον αἰκία δεσµὸς θάνατος ἁρπαγὴ πήρωσις κακηγορία προπηλακισµός.this Corrective Justice again has two subdivisions, corresponding to the two classes of private transactions, those which are voluntary and those which are involuntary. Examples of voluntary transactions are selling, buying, lending at interest, pledging, lending without interest, depositing, letting for hire; these transactions being termed voluntary because they are voluntarily entered upon. Of involuntary transactions some are furtive, for instance, theft, adultery, poisoning, procuring, enticement of slaves, assassination, false witness; others are violent, for instance, assault, imprisonment, murder, robbery with violence, maiming, abusive language, contumelious treatment Aristotle, Nicomachean Ethics

35 Sources

36 Sources CONTRACT DELICT

37 Sources CONTRACT DELICT Is this division EXHAUSTIVE?

38 Sources CONTRACT DELICT Is this division EXHAUSTIVE? Guardianship?

39 Sources CONTRACT DELICT Is this division EXHAUSTIVE? Guardianship? Dowry?

40 Sources CONTRACT DELICT Is this division EXHAUSTIVE? Guardianship? Dowry? Bequests?

41 Other figures D pr. Gaius 2 aureorum sive rerum cottidianarum: Obligationes aut ex contractu nascuntur aut ex maleficio aut proprio quodam iure ex variis causarum figuris Gaius, 2 book of The Golden or Everyday Things: Obligations arise from either from contract or from wrongdoing or by some special right from various types of causes.

42 G : the 3 rd category found First let us consider those that arise from contract. Of such there four kinds: for an obligation by contract arises either by a thing (re), by words (verbis), by letters (litteris), or by (simple) consent (consensu). A real obligation is contracted, for instance, by conveyance on loan for consumption. such a contract takes place properly in the case of things that are reckoned by weight, number, or measure such things as money, wine, oil, corn, bronze, silver, gold (...). 91. he too who receives what is not due to him from one who pays in error comes under a real obligation. For the condictio with the pleading if it appear that the defendant is bound to give lies against him precisely as if he had received the payment by way of loan (...) This sort of obligation, however, appears not to be founded on contract, because one who gives with intent to pay means to untie rather to tie a bound. (quia is qui solvendi animo dat, magis distrahere vult negotium quam contrahere).

43 G : the 3 rd category found First let us consider those that arise from contract. Of such there four kinds: for an obligation by contract arises either by a thing (re), by words (verbis), by letters (litteris), or by (simple) consent (consensu). A real obligation is contracted, for instance, by conveyance on loan for consumption. such a contract takes place properly in the case of things that are reckoned by weight, number, or measure such things as money, wine, oil, corn, bronze, silver, gold (...). 91. he too who receives what is not due to him from one who pays in error comes under a real obligation. For the condictio with the pleading if it appear that the defendant is bound to give lies against him precisely as if he had received the payment by way of loan (...) This sort of obligation, however, appears not to be founded on contract, because one who gives with intent to pay means to untie rather to tie a bound. (quia is qui solvendi animo dat, magis distrahere vult negotium quam contrahere).

44 The apparent contradiction in Gaius solved: Different character of the books (Institutions: a scholarly manual, Golden Things: a handbook for practitioners) Undue payment found in the Institutions

45 LABEO D Ulpianus libro 11 ad Ed.: Labeo libro primo praetoris urbani definit, quod quaedam agantur, quaedam gerantur, quaedam contrahantur: et actum quidem generale verbum esse sive verbis, sive re quid agatur ut in stipulatione vel numeratione: contractum autem ultrocitroque obligatione, quod Graeci συνάλλαγµα vocant, veluti emptionem venditionem, locationem conductionem, societatem: gestum rem significare sine verbis factam. Labeo in the first book on the edict of urban praetor defines that some things are acted, other carried out, other contracted. And indeed acted is a general word whether something is acted by words or things, like in stipulation or computation. Contracted denotes bilateral obligation which the Greeks call synallagma, as for instance, sale or purchase, hire or partnership. Carried out means a thing done without words.

46 Justinianic (and modern? division) 1. The principal division of all obligations resolves itself into two classes; for they are either civil or praetorian. Civil obligations are such as are created by statute, or at all events are approved by the Civil Law. Praetorian obligations are such as the Praetor has established by virtue of his jurisdiction, and these are also styled honorary.

47 Justinianic (and modern? division) 2. Another division is made into four classes, for they arise either from contract, as if from contract, from illegal act, or as if from illegal act. aut enim ex contractu sunt aut quasi ex contractu aut ex maleficio aut quasi ex maleficio.

48

49

50

51 contract

52 contract

53 contract quasi-contract

54 contract quasi-contract

55 contract quasi-contract wrongdoing

56 contract quasi-contract wrongdoing

57 contract quasi-contract wrongdoing quasi-wrongdoing

58 other divisions unilateral < > bilateral simultaneous consecutive further explanation see Introduction II

59 other divisions

60 other divisions stricti iuris < > bonae fidei Condemnation in the formula

61 other divisions stricti iuris < > bonae fidei Condemnation in the formula

62 other divisions stricti iuris < > bonae fidei Condemnation in the formula Let the judge condemn the defendant in favour of the plaintiff for 100 (to the amount of the case-matter here)

63 other divisions stricti iuris < > bonae fidei Condemnation in the formula Let the judge condemn the defendant in favour of the plaintiff for 100 (to the amount of the case-matter here) Let the judge condemn the defendant in favour of the plaintiff according the principles of good faith

64 other divisions natural obligation Paul. 10 Sab. D. 12,6,13 pr.: A slave may be bound by a natural obligation; hence, if anyone should pay a debt for him, or the slave himself should do so after being manumitted (as Pomponius says) or even before from the peculium, the money cannot be claimed back; and because of this, a surety who had been accepted for the slave will be liable, and also a pledge given on his account...

65 Content of obligations

66 Performance/Service rendered precisely defined definable in money

67 Performance/Service rendered impossibilium nulla obligatio est! what is impossibility?

68 impossibilium nulla obligatio est! Marcus has made an agreement with a very decent widow Livia, that she should perform in his comedy. On the day of the performance however Livia does not appear in the theatre. Can he sue her?

69 impossibilium nulla obligatio est!

70 impossibilium nulla obligatio est! Material impossibility :

71 impossibilium nulla obligatio est! Material impossibility : initial

72 impossibilium nulla obligatio est! Material impossibility : initial supervening [only in regards to individualized things, res certa]

73 impossibilium nulla obligatio est! Material impossibility : initial supervening [only in regards to individualized things, res certa] Legal (illicit acts)

74 impossibilium nulla obligatio est! Material impossibility : initial supervening [only in regards to individualized things, res certa] Legal (illicit acts) Moral

75 the content of obligation

76 the content of obligation nemo alteri stipulari potest

77 the content of obligation nemo alteri stipulari potest

78 the content of obligation nemo alteri stipulari potest A: Do you solemnly promise to give to C 1000?

79 the content of obligation nemo alteri stipulari potest A: Do you solemnly promise to give to C 1000? B: I do solemnly promise.

80 Why obligations in favour of the 3 rd party are not admitted?

81 Why obligations in favour of the 3 rd party are not admitted? Publius asked Aulus Do you promise to pay my father 1000 denarii? to which he answered Yes, I do. Is Aulus bound to pay?

82 Types of Performance G. 4.2 In personam actio est, qua agimus cum aliquo, qui nobis vel ex contractu vel ex delicto obligatus est, id est cum intendimus dare facere praestare oportere A personal action is the one by which we sue the one, who has been obliged towards us either from a contract or from a delict, that is when we intend the he shall give, do, perform. DARE - FACERE - PRAESTARE

83

84 DARE: to give (transfer of ownership)

85 DARE: to give (transfer of ownership) FACERE: to perform (in.al. to hand over possession)

86 DARE: to give (transfer of ownership) FACERE: to perform (in.al. to hand over possession) PRAESTARE: to guarantee certain effect.

87 Solidarity of Obligations Active and passive solidarity {Common law: Joint and several liability}

88 Divisibility of obligations Titius: Centum mihi dari Titius: Equum Incitatum mihi spondes? - Caius: dari spondes? - Caius: 'spondeo'. spondeo (Titius asks Caius: Do (Titius asks Caius: Do you you solemnly promise to give me solemnly promise to give me the 100? Caius: I do solemnly horse Incitatus? Caius: I do promise. solemnly promise ). Caius dies, leaving two heirs. Caius dies, leaving two heirs. What happens to the debt? What happens with the debt?

89 Divisibility of obligations Titius: Centum mihi dari Titius: Equum Incitatum mihi spondes? - Caius: dari spondes? - Caius: 'spondeo'. spondeo (Titius asks Caius: Do (Titius asks Caius: Do you you solemnly promise to give me solemnly promise to give me the 100? Caius: I do solemnly horse Incitatus? Caius: I do promise. solemnly promise ). Caius dies, leaving two heirs. Caius dies, leaving two heirs. What happens to the debt? What happens with the debt? Content: DARE (transfer of ownership): Divisible (no matter whether its object is materially divisible)

90 Divisibility of obligations Caius sold to Titius the horse named Incitatus. Titius paid but before the horse was handed over to the buyer Caius died. Caius sold to Titius 10 sacs of wheat, before the wheat was handed over to the buyer Caius died. There are two heirs. There are two heirs. What happens to the debt? What happens to the debt?

91 Divisibility of obligations Caius sold to Titius the horse named Incitatus. Titius paid but before the horse was handed over to the buyer Caius died. Caius sold to Titius 10 sacs of wheat, before the wheat was handed over to the buyer Caius died. There are two heirs. There are two heirs. What happens to the debt? What happens to the debt? Content of the obligation: FACERE (a specified performance): Indivisible (no matter whether its object is materially divisible)

92 Obligatio: content Dare divisible Facere Indivisible (solidarity!)

93 Validity of Legal Acts Homework

94 Validity of Legal Acts Homework What was the scope and the content of sc. Macedonianum? Why was this decree passed? Evaluate its justification and identify possible (dis)advantages of the act.

95 Validity of Legal Acts Homework What was the scope and the content of sc. Macedonianum? Why was this decree passed? Evaluate its justification and identify possible (dis)advantages of the act. Explain Ulpian's statement from the principium of the text. Why under these conditions the Decree would not be applicable?

96 D Ulpian, On the Edict, Book XXIX. pr. Where someone believed an individual to be the head of a family (pater familias), not having been deceived by vain folly or ignorance of law, but because he was publicly considered by most persons to be such, and acted, made contracts, and performed the duties of offices as the head of a household, the Decree of the Senate will not be applicable. [ ]

97 D Ulpian, On the Edict, Book XXIX. pr. Where someone believed an individual to be the head of a family (pater familias), not having been deceived by vain folly or ignorance of law, but because he was publicly considered by most persons to be such, and acted, made contracts, and performed the duties of offices as the head of a household, the Decree of the Senate will not be applicable. [ ]

98 Explain two different reasons in virtue of which the senatus consultum will not be applicable in the case of a ward (A) and of a minor (B) lending money to a son-in-power. What is the nature of the legal acts undertaken by A and B?

99 D Ulpian, On the Edict, Book XXIX. (2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan;

100 D Ulpian, On the Edict, Book XXIX. (2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan;

101 D Ulpian, On the Edict, Book XXIX. (2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he should ACT say that the VOIDABLE Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan;

102 D Ulpian, On the Edict, Book XXIX. (2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan;

103 D Ulpian, On the Edict, Book XXIX. (2) Hence, where a person could not know whether another was a son under paternal control or not, Julianus says, in the Twelfth Book, that the Decree of the Senate will not be applicable; as, for instance, in the case of a ward or a minor under twenty-five years of age. But so far as the minor is concerned, relief should be granted by the Praetor after investigation, but in the case of the ward, he ACT VOID should say that the Decree of the Senate was not operative for another reason, that is, because the money which the ward pays without the authority of his guardian does not become a loan;