1 Samuel, G, ‘Classification of obligations and the impact of constructivist epistemologies’ (1997) 17 LS 448. And see on the corps législatif laid down in the French Code civil: Gordley, J, ‘Myths of the French Civil Code’ (1994) 42 AJCL 459. 2 As we shall see, the distinction between the law of obligations and the law of
property is implied by the Roman law of actions. However, the Romans thought in terms of a category labelled res and the term res included obligations; to say that the Romans strictly distinguished between a ‘law of obligations’ and a ‘law of property’ is not, therefore, quite true. The division at the level of formal categories is a post-Roman development. It would probably be better to say that the Romans were keen to distinguish between real and personal actions and between obligations and dominium (proprietas). See Jolowicz, Roman Foundations, p 62.
a category containing personal rights while the law of property is reserved for real rights (iura in rem, iura in re). Accordingly, the law of obligations was, and remains, partly defined by reference to the law of property. The Roman sources themselves reveal a lack of interest in developing any general theory of obligations; the jurists focused almost entirely on the various species falling within this area of law. In other words, they discussed only the various kinds of contracts, delicts (torts) and actions (remedies) that made up the generic category of the law of obligations. Indeed, they never fully distinguished between substantive obligations and procedural actions with the result that the actual Roman law of obligations seems more like a law of remedies.3
However, in later Roman law, the notion of an obligation was given a definition: ‘An obligation is a legal bond (vinculum iuris) whereby we are constrained to do something according to the law of our state.’4The modern French definition retains this idea of a vinculum iuris in saying that an obligation is a legal bond binding the creditor to the debtor.5An obligation is a legal relationship uniting one individual (the creditor) to another individual (the debtor).6
(a) Legal chain (vinculum iuris)
The most important aspect of an obligation is to be found in this idea of a legal bond. A right in personam is founded upon a legal relationship between person (persona) and person (persona) which, in turn, will entitle the right-holder to a personal action (actio in personam). The law of obligations is thus a category of law concerned with legal claims between individual legal subjects. A right in rem, in contrast, might be described as a legal bond between person (persona) and thing (res) which gives rise to a real action (actio in rem); thus, the law of property is a category concerned with relations between people and things.7 These relationships between people and things can vary depending on the number of persons who might have a relation with a particular thing. Thus, ownership, the most complete relationship with a piece of property, can be contrasted with possession, a notion that has part of its
3 The title in the Digest (D.44.7) devoted to obligations is entitled obligations and actions: de obligationibus et actionibus.
4 J 3.13pr.
5 Malaurie and Aynès, no 1. See, generally, Gazzaniga, J-L, Introduction historique
au droit des obligations, 1992, PUF, pp 19–20.
6 Malaurie and Aynès, no 1.
7 See, generally, Patault, A-M, Introduction historique au droit des biens, 1989, PUF, pp 17–18, 84–85, 109–11.
Chapter 1: General Introduction
basis in fact.8With regard to the law of obligations, however, the notion of an obligatio, despite its under-development in terms of actual theory, was in Roman law a unique relation in itself. That is to say, although obligations had differing sources which could give rise to different types of obligations, the vinculum iuris between two persons was the formal ‘mother’ of all actions in personam (obligatio mater actionis).9The Romans endowed the idea of an obligation with a powerful metaphorical image.10
This idea of a legal relation is still fundamental in civilian legal thinking and all of the civil codes are structured around the difference between real and personal rights. The New Dutch Civil Code, admittedly, now has a book devoted to patrimonial rights in general; but the concept of a single patrimony where real and personal rights are intermixed has its origin, also, in Roman law.11Obligational relations
(iura) in Roman law were forms of intangible property (res
incorporales).12Indeed, the recognition that property could be tangible
(res corporales), that is to say could be touched (a cow, house and the like) or intangible, existing only in law (for example a debt), was one of the major contributions that Roman law has made to modern legal thought. For not only did it help turn the notion of a obligation from a legal chain into a legal right in the sense that all things became objects to be revindicated, but it facilitated the development of new kinds of commercial property without compromising the stability of ownership.13
In one of the first great textbooks of Roman law, the Institutes of
Gaius (around 160 AD), obligations are said to have two main sources.
They were founded either in contracts or in delicts.14The first category,
8 Ourliac, P and de Malafosse, J, Histoire du Droit privé: 2/Les Biens, 2e éd, 1971, PUF, pp 215–34. It is tempting to say that possession is always a question of fact, while ownership is a question of law. In reality, possession is more complex, since in ambiguous situations it is the court that has to decide if a person actually has, or had, possession: see Bridge, M, Personal Property Law, 2nd edn, 1996, Blackstone, pp 12–21.
9 Boyé, A-J, ‘Variations sur l’adage “obligatio Mater Actionis”’, Mélanges Le Bras, 1965, Sirey, p 815. And see D.44.7.41, 51, 53pr.
10 The role of metaphors in the foundation of legal knowledge is discussed in a little more depth in Chapter 14. Certainly, the idea of a legal chain linking two people, to be contrasted with the bond flowing between person and thing, goes far in laying the basis for a structural model which goes beyond the idea of legal- knowledge-as-rules thesis. It is an important starting point for non-symbolic knowledge in law.
11 Ibid, Ourliac and de Malafosse, pp 60–68. 12 G.2.14.
13 D.5.3.18.2.
14 G.3.88. ‘Delicts’ in civil law are more or less analogous to ‘torts’ in the common law.
contracts, consisted of a range of transactions such as sale, hire and loan where the common denominator was agreement (conventio) between two persons,15while the second category was founded on the notion of
wrongs.16 However, this twofold division of obligations proved
unsatisfactory even for Gaius since it could not account for those obligations where one was under a duty to repay money in the absence of either agreement or wrong.17Thus, where P paid money to D under
the mistaken impression that D was his creditor, D was under an obligational duty to repay D even if P could show neither a contractual nor a delictual obligation.18 Later Roman lawyers developed two
further categories, quasi-contracts and quasi-delicts, to rationalise these exceptional claims;19and although quasi-delict never, in the later civil
law, really proved of much value in terms of an independent category,20
quasi-contract achieved considerable independence in being associated with the common denominator of unjust enrichment.21Agreement,
wrongs and unjust enrichment became the three principal sources of obligations and most of the modern codes think in terms of three categories associated with these sources. That is to say, they see obligations as arising from contract, delict and restitution;22and thus
the law of obligations can be sub-divided into these three subject areas.