A classification of the sources of obligation existed under Roman law (A). Under French law, the classification is based essentially upon the distinction between juridical act and juridical fact (B). It remains strongly anchored in the French system, which is alone in this respect: although the classification can be found in certain other civilian systems, inspired by French tradition (C), it would appear outmoded since theXIXth century. First of all, Austrian law expressly refused the use of the concepts of quasi-contract, quasi- delict and juridical fact.6Then, the German and Italian systems in particular separated
the theory of the juridical act from the issue of the sources of obligation by treating the juridical act as the general instrument used to implement human intention. The con- tract, as source of the obligation, is just a type of juridical act among others (D). Finally,
3 J.FLOUR, J.-L.AUBERTand E.SAVAUX, Les obligations, t. I, L’acte juridique, 11eed., Armand
Colin 2004, n° 60.
4 Ibid.
5 The term “taxinomic” does not only refer to the idea of classification, but also to that of
systematization.
without using codification to systematize the source, certain systems such as Scottish law are particularly interesting in that they have come under the double influence of Roman law and common law (E).
A. The Roman origins of the classification of the sources of obligations7
Under Roman law, a binary distinction between juridical act and juridical fact did not prevail. Tripartite (1) or even four-part distinctions (2) have been suggested, in which such expressions do not even appear.
1. The tripartite distinction suggested byGAIUS
One of the first ways of arranging the law of obligations by reference to the sources of obligation goes back to the 2nd centuryBC. It wasGAIUSwho operated a distinction, in the Institutes (3, 88), between the obligations arising out of a contract (ex contractu) and those which arose out of a tort (delict) (ex delicto).8This dichotomy is considered to be
the first summa divisio obligationum. However, there is some doubt as to the true nature of his theory, in particular since the discovery of another work, entitled Res Cottidianae – later referred to as Aurei. In this work,GAIUSsets out a tripartite division: obligations can arise out of a contract (ex contractu) out of a delict (ex maleficio), or out of a third category named variae causarum figurae (“the various figures of causes”).9It would appear
that, under this last category,GAIUSmay have been referring to quasi-contracts (quasi ex contractu teneri videntur) and quasi-delicts (quasi maleficio) without naming them.
Such a hypothesis would appear to be corroborated by the mention in the Institutes (3, 91) of the action for repayment of money handed over in the mistaken belief it was due: “the sum of money paid when it was not due may be claimed by condictio from the recipient, in the same way as if he had received a loan”. The question has therefore arisen for historians as much as for jurists: Did GAIUS have a twofold or threefold division in mind? The majority of academics take the view that it is difficult to attribute the paternity of the tripartite division toGAIUSon the basis that the text of the Aurei was substancially modified by postclassical authors.10
7 H. and L.MAZEAUD, J.MAZEAUD, F.CHABAS, Leçons de droit civil, T.II, Premier volume,
Obligations, Théorie générale, Montchrestien, 9th edition 1998, esp. p. 44-48; R.ZIMMER- MANN, The law of obligations, Roman Foundations of the Civilian Tradition,OUP1996, esp. pp. 10-21; R.-M.RAMPELBERG, Repères romains pour le droit européen des contrats,LGDJ, Systèmes, Droit, 2005, p. 33-42; J.-P.LEVY, A.CASTALDO, Histoire du droit civil, Dalloz, 1st edition 2002, esp. p. 648-654.
8 “Omnis obligatio vel ex contractu nascitur, vel ex delicto”.
9 “Obligationes aut ex contractu nascuntur aut ex maleficio, aut proprio quodam jure ex variis
causarum figuris”.
10 H. and LMAZEAUD, J.MAZEAUD, F.CHABAS, op.cit. n° 46, p. 45. However, Mr.LEVYand
MrCASTALDO, after noting the existence of this majority held opinion put forward a dis- senting view, arguing that, according to them, the paternity of the tripartite division could legitimately be attributed to Gaius. op.cit. p. 650.
2. The four-part distinction put forward byJUSTINIAN
JUSTINIANsuggested a four-part division of obligations, consisting of contracts, quasi- contracts, delicts and quasi-delicts.
The category of quasi-contracts included indebitum solutum, negotium gestum, tu- tela, communio and legatum per damnationem.
The category of quasi-delicts included iudex qui litem suam fecit (damage caused by the judge to another person), deiectum vel effusum, positum vel suspensum (when objects placed or suspended on a ledge or a roof fell and endangered traffic below) and finally furtum vel damnum in navi aut caupone aut stabulo.
As for the meaning of the terms “contract” and “delict”, they were summarised as follows by R.ZIMMERMAN: “It has remained fundamental ever since and is the reflec- tion of the fact that different rules are needed to govern the voluntary transfer of re- sources between two members of the legal community on the one hand, and possible collisions between their private spheres on the other: the one body of rules being con- cerned with the fulfilment of expectation engendered by a binding promise, the other by the protection of the status quo against wrongful harm”.11
With the same viewpoint, Ch. FRIED12 writes: “The law of property defines the
boundaries of our rightful possessions, while the law of torts seeks to make us whole against violations of those boundaries, as well as against violations of the natural bound- aries of our physical person. Contract law ratifies and enforces our joint ventures beyond those boundaries”.
This division was adopted but also heavily criticized by academics, in particular during theXIXth century when it was used as a basis for the French codification.
B. The progressive consecration of the distinction between juridical acts and juridical facts in the french theory of classification of obligations by reference to their sources
Although the classification of obligations by reference to their sources based on the distinction between juridical act and juridical fact is that which is accepted by academics today (2), it was not however the first classification to be suggested, as evidenced by the arrangement of the Civil Code which was severely criticized by academics (1).
1. The arrangement of the Civil Code: a heavily criticized choice
POTHIER, during theXVIIIth century, revisited to the four-part arrangement of obliga- tions as had been envisaged byJUSTINIAN. But in addition to contracts, quasi-con- tracts, delicts and quasi-delicts, he put forward a fifth source, the law. Generally speaking, this last source was used as a residual category for whatever was not covered by the four others.POTHIER’s influence was crucial with regard to the arrangement which appears in the French Civil Code.
11 R.ZIMMERMAN, op.cit., p. 11.
The doyenCARBONNIERhighlights the existence of a symmetry occuring on the one hand between contracts and quasi-contracts, which have legality in common and on the other hand, delicts and quasi-delicts, which are illegal. In parallel, “contracts and delicts have intention in common: whether it be the intention to cause damage, the intention to create obligations; whilst quasi-contracts and quasi-delicts are not inten- tional, implying a weaker part played by will compared with contracts or delicts. Exclu- ded from these considerations, the law appears as a receptacle for all the obligations which cannot find a place elsewhere. [...] The law, along with the three other sources, forms in article 1370, paragraph 1, the wider category of obligations which form without a contract, as opposed to the contractual obligations”.13
Such an arrangement, partly inherited from Roman law, drew a certain amount of criticism.
Alternative suggestions were thus put forward. The heat of the criticism was not directed so much at the Justinian arrangement as it was at the Civil Code itself. From its original version in 1804, it distinguished in PartIII, entitled “Different ways of acquiring ownership”, a number of titles, among which TitleIII “Contracts and contractual ob- ligations generally” and TitleIV“Obligations which arise without a contract”. The doyen
CARBONNIERwrites: “It is there, in fact, that can be found the great classification of the Civil Code (it is the heading of the two titles which divides the law of obligations), and although the second label may seem purely negative, the modern distinction between juridical act and juridical fact is not so far removed”.14
The criticism directed at the distinction suggested byJUSTINIANand partly used by the authors of the 1804 code coincided with a period during which the influence of Roman law was waning. The fiercest criticism had already been voiced by jusnaturalists such as PUDENDORF and GROTIUS. Their approach was based on a functionalist theory, which aimed to classify obligations by reference to their content and effect rather than by reference to their sources.15
Some authors16came back to the subdivision based onGAIUS’ Institutes, opposing
contracts to delicts. Others, such asPLANIOL, took the view that a quasi-contract was an empty notion and that there were only two true sources of obligations, the contract and the law: “In reality, there are only two sources of obligations: a meeting of wills between the obligor and obligee, and the almighty will of the law, which imposes an obligation upon a person, no matter what that person’s intention and in the interest of another. This classification ends up being no more that the well known distinction based on contrac- tual or non contractual obligations, but instead of using a negative description of the
13 J.CARBONNIER, Droit civil, Les biens, Les obligations, Quadrige, Manuel,PUF2004, Text of the
22nd revised edition, janvier 2000, pp. 1928-1929.
14 J.CARBONNIER, op.cit., pp. 1929 and 1930.
15 In a very similar vein asPUDENDORFandGROTIUS, “the system of the Prussian General
Land Law [...] does not have a title on obligations or even on contract, but deals with the individual obligations in the context and from the point of view of their function for acquisi- tion, loss and transfer of ownership”. R.ZIMMERMAN, op.cit., p. 18, note 100.
16 H.H.SEILER, Die Systematik der einzelnen Schuldverhältnisse in der neueren Privatrechtge-
latter, by referring to them as “obligations which form without a contract”, as set out in the Civil Code, it is more positive in attributing a special and unique source to such obligations: the law”.17
Beyond the differences in opinion, some sort of consensus seems to be emerging as to the necessity of finding a broader category than “contract” to cover the intentional action of man, whether or not it generates obligations. This effort of generalisation resulted in the creation of the category of “actes juridiques” (juridical acts). This category was opposed to the category of “faits juridiques” (juridical facts), the internal subdivisions of which have nevertheless been the subject of controversy similar to that which sur- rounded the titleIVof PartIIIof the Civil Code.
2. The classification based on a distinction between juridical acts and juridical facts is Alive and Well
Despite the criticism, the sources of the law of obligations are arranged, in French legal theory at least, in accordance with the dichotomy between juridical acts and juridical facts.
This distinction was impliedly adopted byDEMOGUE,18then expressly byBONNE-
CASSE, in tome 2 of the Supplement to theBAUDRY LACANTINERIEtreatise in which he sets out two opposing methods to define a juridical act and a juridical fact: “it is exceedingly difficult to classify in a clear cut way the works of contemporary authors with regard to the theory on juridical act and juridical fact, all the more so because most are content with very general sections on the topic. We shall however point out [...] that while some authors,CAPITANT,COLIN,PLANIOL, make use of abstract concepts and generalisation to end up with very simple definitions falling within the province of pure juridical technique, the others, such asDEMOGUE, constantly mixing science and tech- nique, refuse the use of abstraction and generalisation which they argue would not reflect the complexity of life in society and then end up, finally, with definitions which are much more complicated than the first”.19
However, as noted by J.HAUSER, “no matter from which angle academics consid- ered the question, it remains certain that the summa divisio juridical act-juridical fact gradually found its place in all classical works on civil law”.20
17 M.PLANIOL, “Classification des sources des obligations”, Rev. Cri. De Leg. et de Jurisp., 1904,
p. 224; contra J.FLOUR, Cours poly., 2nd year, 1964-1965, Paris, Les Cours du droit who con- sidered that “s’agissant de ‘source première’, c’est bien entendu la loi qui en constitue le noyau mais que dans le domaine des ‘sources immédiates’ des subdivisions demeurent justifiées”.
18 R.DEMOGUE, Traité des obligations en général, t. I, Paris, 1923, n° 11.
19 J.BONNECASSE, Supplement to the treaties Baudry Lacantinerie, 1925, t. 2, n° 311. 20 J.HAUSER, Objectivisme and following objectivisme dans l’acte juridique,LGDJ1971, p. 29, n° 23.
Certain works such as those ofBEUDANT LEREBOURS-PIGEONNIERE(Cours de droit civil français, 2nd ed., Paris, 1936, t. 8, n° 14) only leave a residual place for the distinction whilst others such as those ofMARTYandRAYNAUD(Traité de droit civil, t. 2 “les obligations”, vol. 1. 1962 and vol. 2 1965), or much more recently that ofFLOUR,AUBERTandSAVAUX(Droit civil, Les obligations, T.1., L’acte juridique, 11e édition, Armand Colin 2004; T.2., Le fait jur- idique, 11e édition, Armand Colin, 2005; T.3. (adde. Y.FLOUR), Le rapport d’obligation, 4e
As for the quasi-contract, its place in the traditional classification is that of a par- ticular type of juridical fact, so that it can clearly be distinguished from the juridical act. As explained by D.MAZEAUD, traditionally, “what distinguishes the quasi-contract from the juridical act in general, and from the contract in particular, is the role played by intention in each of these sources of obligation. Whilst in the juridical act, the intention is to produce legal effects, in the quasi-contract, the intention is reduced to the carrying out of an action which benefits a third party, without any intention to bind or to be bound”.21 The quasi-contract could therefore be defined, traditionally, as a
spontaneous juridical fact which essentially benefits a third party.
This classification of the sources of obligations has found a new lease of life thanks to the French Reform Proposals. Under a new TitleIII, entitled “Obligations”, a preliminary chapter deals with the “sources of obligation”. This chapter contains articles 1101 to 1101-2 which highlight the divide between juridical act and juridical fact, and grant a residual role to the law, in particular with regard to “obligations of neighbourhood and servitudes of public law”.22
The “acte juridique” (juridical act) is defined in article 1101-1: “Juridical acts are exercises of will which are intended to produce legal effects”. Are expressly included contracts, as well as unilateral juridical acts and collective juridical acts, which are subject to the same legal regime as contracts “insofar as is reasonably possible”.23
“Faits juridiques” (juridical facts), are defined in article 1101-2: “Juridical facts consist of conduct or events to which the law attaches legal consequences”. Within this category, two sub-categories can be distinguished: the quasi-contrat, on the one hand, briefly defined at paragraph 2 as “an action which confers on another a benefit to which he has no right” and “an action which, without legal justification, causes harm to another”, on the other hand, which is dealt with under a separate sub-title, entitled “Civil liabil- ity”. The Roman law distinction between delict and quasi-delict is very discretely pre- served: it is only mentioned in article 1117-3 of the French Reform Proposals.
Moreover, beyond the apparently bipartite distinction between juridical act and juridical fact, it is really a classification setting out three types of sources of obligation – juridical act, quasi-contract and “action which, without legal justification, causes harm to another”.24“These three main sources of obligation”25are the subject of the prelimin-
édition, Armand Colin 2006), on the contrary, structure their reasoning around this distinc- tion.
21 D.MAZEAUD, note below Ch. Mixte, 6 Sept. 2002, D. 2002.2963.
22 The quote is from the drafting of paragraph 2 of the new article 1101 of the French Reform
Proposals which provides “Certaines obligations naissent également de l’autorité seule de la loi, comme les obligations de voisinage et les charges publiques dont il est traité dans les matières qui les concernent” (“Certain obligations also arise out of the sole authority of the law, such as neighbourhood obligations and servitudes of public law”).
23 Article 1101-1 in fine of the French Reform Proposals: “L’acte unilatéral et l’acte collectif
obéissent, en tant que de raison, pour leur validité et leurs effets, aux règles qui gouvernent les conventions”. (“The unilateral act and the collective act are governed, as far as reasonably possible, as regards their validity or their effects, by the rules which are applicable to conven- tions.”).
24 It should be noted here that the section on “responsabilité civile” (civil liability) of the French
ary chapter. They also determine the tripartite organisation of the titles contained in the new PartIII, which deals with contracts, quasi-contracts and civil responsibility under three separate sub-headings. More generally, there is now strong competition regarding qualification as a juridical act or a juridical fact, to the point that the time has perhaps come, as suggested byC. CAILLE, to put an end to the marginalisation of the quasi- contract as a source of obligation. Rather, this “legendary monster”26 should be given
a stand-alone place, alongside juridical acts and tort. Indeed, although it comes under the category of juridical facts, it can give rise to obligations which are contractual in nature:
“The fact that cases of competition arise permanently27leads us to observe that the
traditional classification of the sources is insufficient to govern all situations in a satis- factory manner. In certain cases, the dualist classification alone leads either to a situation where no solution is found, or to a situation in which a solution is only found by deform- ing the concepts. This dilemma can only be resolved by a novel approach to the sources, by admitting that contractual obligations can find their sources in non-contractual si- tuations. It is not inconceivable today that such a ‘mixed’ category should be recognized. It would have its place in the process, which has seen intention play a diminishing role in the creation of contractual obligations”.28
Better still, it would seem that the frontier between the two sources of obligation is less clear cut that might be imagined and that the passage from one to the other is in fact the result of a progression, a “trajectory”:29“Between the ideal juridical act, pure product
of intention and the ideal juridical fact, there are situations which are more complex, less ‘pure’, which can find an attraction in both categories”.30There would be a danger in
artificially creating a new contractual source in order to justify the judicial creation of a
contractual liability. This constitues a major difference with English law which does not include this mecanism in the category of Tort. On the reasons for this choice, see G.VINEY, Avant-