Roman Law of Obligations: A Comprehensive Guide
Roman Law of Obligations
Definition
An obligation is a legal link between persons, requiring one party to perform a specific action. This action can be dare (to give), facere (to do), or praestare (to provide). Historically, obligations evolved from forms like nexum (a loan secured by the borrower’s person) and sponcio (a solemn promise). Later developments included bonorum venditio (sale of all debtor’s assets) and distractio bonorum (sale of specific assets).
Elements of an Obligation
- Legal Link: A legally enforceable relationship between persons.
- Subjects: An active subject (creditor) and a passive subject (debtor).
- Performance: The debtor’s action (dare, facere, or praestare).
- Dare: Transferring ownership or a real right.
- Facere: Performing any act other than dare, including refraining from an action.
- Praestare: Providing a service or guarantee.
- Possible
- Lawful
- Determined or determinable
- Of interest to the creditor
Types of Obligations
Simple Obligations
Involve one creditor and one debtor.
Multiple or Complex Obligations
Involve multiple creditors or debtors.
- Joint Obligations (parciarias): Each creditor can claim only their share, and each debtor is liable only for their portion.
- Solidary Obligations (obligor): Any creditor can demand full performance from any debtor, and payment by one debtor discharges the others.
- Elements of Solidary Obligations:
- Multiple links (active, passive, or mixed)
- Single performance
- Divisible object
- Express agreement, statutory provision, or testamentary disposition
- Classes of Solidary Obligations:
- Passive: Multiple debtors, any of whom can be held liable for the entire debt.
- Active: Multiple creditors, any of whom can claim the entire debt.
- Mixed: Multiple creditors and debtors.
- Elements of Solidary Obligations:
Sources of Solidarity
- Convention (agreement)
- Will (testament)
- Law
Legal Nature of Solidarity
- Guarantee for the creditor (passive solidarity)
- Modification of the effects of obligations with multiple subjects
Effects of Solidarity
- Active Solidarity: Any creditor can demand full payment, discharging the debtor’s obligation to all creditors.
- Passive Solidarity: Any debtor can be compelled to pay the full debt, discharging the other debtors’ obligations to the creditor. Internally, the paying debtor can claim reimbursement from the others.
Compliance and Breach
Compliance (Solutio)
Voluntary and complete fulfillment of the obligation (payment).
Breach
Non-performance, incomplete performance, or late performance.
Civil Liability
The obligation to repair damage, whether contractual or extra-contractual.
Breach of Contract
Dolo (Fraud)
Intentional act or omission by the debtor to harm the creditor.
Mora (Delay)
Delay in performance due to the debtor’s fault (mora debitoris) or the creditor’s obstruction (mora creditoris). Damages are typically only awarded after the creditor demands performance.
Ways to Extinguish Obligations
- Payment (Solutio): Delivery of the due performance.
- Novation (Novati): Replacing an existing obligation with a new one.
- Compensation: Offsetting mutual debts.
- Remission: Creditor waives the right to demand payment.
- Mutual Dissent (Consensual Solution): Agreement to dissolve the obligation.
- Confusion: Creditor and debtor become the same person.
- Transaction: Settlement of disputed rights through mutual concessions.
- Loss of the Thing or Impossibility of Performance: If performance becomes impossible without the debtor’s fault.
- Expiration of Term or Fulfillment of Condition Subsequent: Depending on the nature of the obligation.
- Capitis Deminutio: Change in legal status affecting the debtor’s capacity.
- Death of Debtor: Generally, obligations pass to heirs, but some are extinguished by death.
- Extinctive Prescription: Obligation extinguished after a period of inactivity by the creditor.