Obligations in Roman Law: Concept, Content, and Types
Item 11: Obligations – Concept and Content
Definition of Obligation
The term “obligation” originates from the Roman legal concept of debitum and responsabilitas.
Debitum: The obligation to comply with a provision.
Responsabilitas: The consequences a debtor faces for failing to fulfill the debitum.
When these two elements combine, they form the legal concept of obligation.
Content of the Obligation (Dare, Facere, Praestare)
The Romans categorized the content of an obligation as follows:
- Dare: Transferring ownership of a thing or a property right.
- Facere: Performing an activity or conduct required by the creditor.
- Praestare: Assuming economic liability or damages for breach of obligation. This corresponds to the concept of responsibility.
Praestare Property: Refers to the economic value of a thing, susceptible to assessment.
Legal Responsibility
For the Romans, responsibility meant answering for one’s actions, fulfilling obligations, and bearing the consequences of causing harm to another person. Legal responsibility is classified into three types:
- Criminal: The obligation of a person found guilty of a crime to serve a sentence, which is typically custodial, personal, and non-transferable.
- Civil: Compensation for damages. Civil liability can exist without a criminal penalty, known as vicarious liability. This includes liability in guarding, which arises from responsibility in the workplace.
- Administrative: Arises from the breach of administrative rules, primarily applicable in the workplace.
The line between criminal and civil liability is not absolute; if compensation is not paid, a judge may impose criminal penalties.
Degrees of Responsibility in a Contract
There are different degrees of responsibility:
- First Degree: Dolus (Intent): This is the lowest degree of responsibility in civil law. It involves the deliberate intention to cause harm. To establish dolus, two elements must be proven:
- Intellectual: Knowledge that the act will cause harm.
- Volitive: The actor’s conscious decision to cause harm.
- Second Degree: Culpa (Negligence): This refers to a lack of due care. When there is no intent, negligence may be attributed. The degree of responsibility for culpa falls between dolus and custodia. There are different degrees of culpa:
- Culpa Lata (Gross Negligence): A failure to exercise the most basic care and diligence. Example: Failing to feed a borrowed horse.
- Culpa Levis (Slight Negligence): Also known as abstract negligence, it compares the debtor’s conduct to that of a reasonable person (paterfamilias).
- Culpa Levis in Concreto (Specific Negligence): The debtor is liable for failing to exercise the same care and diligence they would in their own affairs. This applies primarily in employment relationships.
- Third Degree: Custodia (Custody): This is the highest degree of responsibility. It refers to the care and safekeeping of a thing until it is claimed.
Liability in Tort
Tort liability arises outside of a contractual agreement, also known as Aquilian liability. An example is the liability of a parent for their children. This type of liability includes fortuitous events and cases of force majeure.
- Fortuitous Event: An unpredictable event beyond the debtor’s control that prevents them from fulfilling their obligation.
- Force Majeure: An irresistible event caused by natural forces or human activity, beyond the debtor’s control, that prevents them from fulfilling their obligation.
Mora (Delay)
Mora refers to a culpable delay in fulfilling an obligation, either by the debtor or by the creditor’s refusal to accept performance. There are two types of mora:
- Mora Debitoris (Debtor’s Delay): Occurs when the debtor, for reasons attributable to them, fails to fulfill their obligation at the agreed time and place. Requirements for mora debitoris:
- The delay is an unjustified breach of the obligation.
- The obligation is valid and enforceable.
- The creditor has formally demanded performance (interpellatio) from the debtor, reminding them of the time and place of performance (arguable).
- The debt continues to exist. If it is a monetary debt, the debtor is obliged to pay interest for the delay.
- The debtor is obliged to deliver all fruits and accessions produced by the thing from the time the delay began.
- Mora Creditoris (Creditor’s Delay): Occurs when the creditor unjustifiably refuses to accept the debtor’s performance.
Guarantees of Liability
- Arras (Earnest Money): A sum of money or an object given by the debtor to the creditor upon concluding a contract, particularly a sale contract.
- Oath: Operates as a guarantee for individuals under 25 years of age. It denies the restitutio in integrum, which would normally apply if the individual had entered into a contract without the assistance of their guardian.
- Penalty Clause: A clause added to a contract stipulating that the debtor will pay a certain sum of money to the creditor in case of default.
- Fideiussio (Suretyship): A verbal contract where a person (surety) agrees to pay a debt if the principal debtor defaults. Characteristics of fideiussio:
- The surety is liable in case of the debtor’s default.
- Fideiussio could guarantee all types of obligations.
- The surety was bound by the same provisions as the principal debtor and could be liable for the entire debt or a portion of it.
- Initially, the creditor could pursue either the debtor or the surety. Justinian later mandated that the creditor must first pursue the principal debtor.
- In cases of multiple sureties, Hadrian granted the beneficium divisionis, requiring the creditor to divide the debt among solvent sureties.
- Mandatum Pecuniae Credendae (Mandate of Credit): A contract where a client instructs an agent to lend money or consumable goods to a third party, with the agent acting as a surety for the loan’s repayment. The third party is the debtor, the agent is the principal creditor, and the client is the surety.
Classification of Obligations
According to Law (Nature of Protection)
- Natural Obligations: Based on moral or social principles rather than legal enforcement. They lack legal backing and specific legal action for enforcement.
- Civil Obligations: Imposed by law and legally protected. Failure to comply can be addressed through legal action.
- Improper Obligations: Based on moral obligations without legal or social grounds. Their fulfillment relies solely on ethical, religious, or personal considerations. Example: Supporting a family member beyond the first degree of legal obligation. The main legal effect of moral obligations is:
- Solutio Retentio: Even though it’s a natural obligation, if the debtor pays the creditor, the creditor has the right to retain the payment.
According to the Object
- Generic Obligations: The performance involves things of a certain category (genus), indicating only the general type (e.g., 1 ton of wheat). The debtor is not released from the obligation by the destruction of specific things within the genus.
- Alternative Obligations: The obligation can be fulfilled by performing one of several different options. If no agreement is reached on the choice by the due date, the obligation is not considered conditional. The debtor is obligated to perform one of the alternatives. The choice typically belongs to the debtor unless otherwise specified. Once the choice is made, the obligation focuses on the chosen alternative, and its fulfillment discharges the debt.
- Facultative Obligations: The obligation has a single primary object, but a clause allows the debtor to choose an alternative object on the due date. The primary object must remain available; otherwise, the contract is extinguished.
According to the Subjects
- Ambulatory Obligations (propter rem): Both the debtor and creditor can be indeterminate at the beginning of the contract. The subjects may change, but the institution they represent remains constant. Example: A legacy to the Bishop; the individual Bishop may change, but the institution continues.
- Joint and Several Obligations: These are divided into joint (parciarias) and solidary (in solidum) obligations.
- Joint Obligations: Multiple debtors or creditors are involved, and each creditor can only demand a portion of the performance from each debtor, corresponding to their share of the credit or debt.
- Solidary Obligations (in solidum): Multiple debtors or creditors are involved, but each creditor can demand full performance from any of the debtors. When there are multiple creditors, it’s called active solidarity; with multiple debtors, it’s passive solidarity. Mixed solidarity involves multiple debtors and creditors. In solidary obligations, the action of recourse (actio regresoria) allows a debtor who has fulfilled the entire obligation to recover their share from the other debtors. Conversely, the action of contribution (actio communi dividundo) allows a creditor who has received full payment to distribute the excess to the other creditors.
- Cumulative Obligation: A penal obligation arising when multiple individuals commit a criminal act.