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1.

Introduction
The purpose of this essay is to critically discuss the importance of the development
of the Roman law concept obligatio. The obligatio can be looked at as a watershed in
the scientific discipline of jurisprudence. The term itself, in its most literal form means
that something or someone is bound.
Justinian advanced the famous definition in in his Institutiones, Book 3, section 13
as his Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae
rei sceundum nostrae civitatis iura which can be loosely translated as: an obligation
is a legal tie which binds us to the necessity of making some performance in
accordance with the laws of our state.1
This essay will explore the concept obligatio from its earliest form in ancient Rome
through history up until the modern age. The objective is to obtain a comprehensive
perspective on why the obligatio is considered one of the greatest contributions to
jurisprudence.
2.Obligatio during the twelve tables
In the primitive stages of Roman law before the twelve tables and the notion of
obligatio came into existence, self-help was a common practice. Thus, where a party
committed a wrongful act against anothers property the wronged party could seek
vengeance, the wronged party gained seizure over the wrongful parties body, and
this usually meant death in severe cases. 2
This crude practice was, however, broken off by the time of the Twelve Tables. The
law was somewhat codified and self-help was considerably restricted.
This meant the wronged party was forced to accept money as compensation, but if
the wrongdoer did not have the money the wronged party could still take seizure over
his body. 3
Over a period of time, this power of seizure could be applied to a variety of
performances. So, if one party wanted to obligate another to a specific performance,

1 Buckland, William Warwick, and Peter Stein. A text-book of roman law: from
Augustus to Justinian. Cambridge University Press, 2007 page 405.
2 Zimmerman, Reinhard. "The law of obligations." Roman foundations of the
civilian tradition. Juta & Co, Cape Town (1990) page 1.
3Page 2.

he would require the party to comply with this power of seizure as a mean of exerting
pressure on said party for assurance.

It was accepted that the debtor was under a duty to perform while the other party
had a corresponding right to claim. The debtor was thus bound to do whatever he
had promised and if he failed to perform then only would be liable with his body or
life.
One of the oldest of these contracts was nexum, which was a form of loan,
primarily used for economic purposes to ensure a repayment of a loan. By the
classical period nexum was no longer in effect, but rather replaced with the informal
Mutuum.
Nexum and Mutuum are in essence the historical roots of what was later to be
classified as contractual obligations.
2. Development of the obligtio
2.1.Definition
The concept of obligatio by the classical period was a strictly legal one that is
vinculum iuris, vinculum means to bind or bond while iuris means law thus it was
a legal bond, to lose this legal bond, solvere obligationem, which meant to loosen or
discharge the obligation, the law would have demanded a specific act be concluded
and it would be this act which formed the content of the obligation. 5
Roman law was actionable, meaning that only where there was a remedy was there
a right - ubi remedium, ibi ius.6 The remedy for the obligatio was always the action in
personam as the obligatio was an agreement between two parties rather than a party
and a thing.
2.2.Natural obligations
As stated the obligatio was enforceable via the Actiones Cilivies but there were
many cases where the creditor had no efficient way of enforcing his obligatio, this is
known as natural obligations.

4Page 4.
5 M, Radin. Fundamental Concepts of the Roman Law, 12 Cal. L. Rev. 481 (1924).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol12/iss6/4
6R, Zimmerman. "The law of obligations." Roman foundations of the civilian
tradition. Juta & Co, Cape Town (1990) page 9.

These were not legally enforceable, but still had legal consequences; in effect the
law recognizes some aspects of the transaction but does not help the creditor in
enforcing his right.
The concept of Natural obligations has survived into the modern ages, The South
African law still uses the term natural obligations in the circumstances set out above.
The German Civil Code, in addition, still recognizes non-binding obligations, i.e.
obligations arising from betting.7
2.3.Contractus and Delictum
According to Gaius, in his institutes, an obligatio had two possible causes: a
contractus or a delictum.8
This distinction is a fundamental one; it serves as an indication that different rules
are needed to govern the above-mentioned distinctions, where legal parties transfer
resources voluntarily on the one hand and where there is a protection of the status
quo ante -where a party was wronged- on the other.
2.4.Quasi-Contractus and Quasi-Delictum
Contactus and the delictum are but two obligations of a fourfold subdivision, the
remaining two are the quasi-contractual and quasi- delictual obligations.
Quasi-contractus obligations comprised of situations that are not strictly contractual
but where liability in personam come about. IE negotiorum gestio unjustified
enrichment. 9
Quasi-delictual obligations were more unclear and messy, and lacked a unifying
principle. However, A the binding feature of this obligation might have been culpa,
as in three of the four types of quasi delicts liability ensued regardless of fault.

10

The classification, however hazy, was a model for modern codes. The French civil
code in particular follows a four part subdivision. The German Civil Code, on the
7 P, Du Plessis. Borkowski's Textbook on Roman Law. Oxford University Press,
USA, 2015.
8 G, Mousourakis. Fundamentals of Roman private law. Springer Science &
Business Media, 2012 page 185.
9 R, Zimmerman. "The law of obligations." Roman foundations of the civilian
tradition. Juta & Co, Cape Town (1990) page 10.
10 Page 15-16.

other hand, has a list of 25 different particular obligations instead of categorizing


them into four due to the inherent difficulties already mentioned.
2.5.What did this development entail
The law of the time was not systematical nor was it structured in a logical coherent
order. It was Gaius, who first attempted this feat, he imposed on civil law a
subdivision between persons and things and later actions.
The law of obligations was not considered as a separate division this was due to the
fact that the law of things concerned itself with both real rights and the law of
patrimony in a broad sense. Thus, the law of things in part dealt with the law of
obligations.
This tripartite division of persons, things and actions has left a lasting mark on most
modern legal systems dispute its confusing nature. Gaius had mixed different
criteria in his scheme, he differentiates between corporeal and incorpeal things, but
fails to coherently carry it through as he introduces usufructs and praedial
servitudes.
2.6.The Justinian method
Justinian in his attempt to structure the law, took over Gaius method. Although
Gaius was used as a base Justinian created a more balanced logical structured
method.
Justinian included obligations in book four, the book of actiones.

By the

Justinian period, however, actiones was entirely different to what it was in the
classical period. Actiones had become part of the substantive law, meaning the right
to demand a performance from a second party. 11
This new formulation of actiones was basically what an obligations was, and in the
institutes, the constantinopolean professor Theophilus stated obligation the
mother of actions.12
The stance that actions and obligations fit together, was accepted in the Middle
Ages and supported by the corpus iuris, D 44, 4 and C 4, 10. 13 However, by the 19th
century there was a divide as different schools begun to move away from what they
11 Mousourakis, George. Fundamentals of Roman private law. Springer Science &
Business Media, 2012 page 186-187.
12 Buckland, William Warwick, and Peter Stein. A text-book of roman law: from
Augustus to Justinian. Cambridge University Press, 2007.

called the legal order and subsequently there was a continuous battle for
systemization.
It wasnt until the German civil code (BGB) that the battle finally subsided. It came
with Georg Arnold Heises five-membered scheme which came to be known as
Pandektensystem which forms the basis of the BGB.

14

This five part division goes

as follows: a genera part, obligations, things, family law and succession.


The pandektensystem has become an intricate part of the German private law and
consequently the law of obligations is in modern times an undisputed component on
its own ingrained in almost all modern legal systems.
3.Current legal standing
The concept of obligatio is especially important in civil legal systems and those
countries which are based on capitalist considerations.
The law of obligations today is one branch of private law under the civil legal
systems. It consists of a set of rules which organizes and regulates rights and duties
arising between individuals.
The modern law of obligations comprises of the threefold subdivision; contracts,
quasi contracts and quasi delicts.
3.1Classification
These days the law of obligations can be classified into two main groupings
I.
II.

Voluntary
Involuntary

The first category consists of contracts and quasi contracts. A contract can be
described as a meeting of minds between two persons whereby one binds himself to
another to render some service. An obligation arising from these contracts has the
force of law.
Capitalist nations have the law of contract and free enterprise as its fundamental
basis, thus contractual law finds its basis in the law of obligations which is derived
from the Roman law principle obligatio.
Contracts invade every component of our lives privately and publically, simple acts
like buying food to marriage or buying share as on the stock market would not be
impossible with contact law to regulate it.
13 R, Zimmerman. "The law of obligations." Roman foundations of the civilian
tradition. Juta & Co, Cape Town (1990)page 19-20.
14 Page 20-21

The second category consists of quasi delicts (common law tort) which arises when
one party without causes injury to another in some form due to negligence without
intention.
4.Conclusion
The Roman law concept of obligatios importance lies in its development and
influence on the western world. The Roman Empire was one of the greatest and
largest as it conquered most of Europe and beyond. Rome imposed its legal system
on all its colonies allowing its laws to be adopted and enforced across the world.
Over the centuries these laws were assimilated and adapted to suit the times,
From this continuous development we receive the modern principals of both
contracts and delicts.
As previously stated, contractual law is the basis of an economy founded on free
enterprise, without the development of obligations which gives legal force to
contracts, such economies would be moot.
Moreover, the law of delicts is essential to protect and uphold rights of people. The
obligations arising from delicts restore the status quo ante and protects individuals.

Bibliography
Books:
R, Zimmerman. "The law of obligations." Roman foundations of the civilian
tradition. (1990).Cape Town, Juta & Co.
G, Mousourakis. Fundamentals of Roman private law. (2012) Springer Science &
Business Media.
G, Mousourakis. Roman law and the origins of the civil law tradition. (2015)
Springer.
Buckland, William Warwick, and Peter Stein. A text-book of roman law: from
Augustus to Justinian. (2007) Cambridge University Press.
P, Du Plessis. Borkowski's Textbook on Roman Law. (2015) USA, Oxford University.
McGinn, Thomas AJ, ed. Obligations in Roman Law: Past, Present, and Future. Vol.
33. (2012) University of Michigan Press.
Internet:

M, Radin. Fundamental Concepts of the Roman Law, 12 Cal. L. Rev. 481 (1924).
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol12/iss6/4

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