Law of Obligations & Legal Remedies

Geoffrey Samuel

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135342104
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the notion of a law of obligations as a conceptual category in itself; and, in doing this, it presents the foundational material in a context that draws on some comparative and theoretical ideas while, at the same time, emphasising the special characteristics of the common law.

The book is specifically designed to act as an introduction to the legal research skills of reasoning and method. It also looks at the foundations of civil liability in a way that emphasises the interrelationship of source materials, problem solving and conceptual analysis and justification.

CHAPTER 1
GENERAL INTRODUCTION

The term ‘law of obligations’ is being used with increasing frequency in England to describe the law of contract, tort and restitution and as a term of convenience it presents few problems. However, as a term of art (or perhaps one should say science) its fundamental connection to the civil law tradition gives rise to a number of problems for anyone who might want to employ it as an analytical tool within the common law tradition. For, in civilian (continental) legal thought, the idea of a law of obligations goes well beyond a mere category. It represents a central part of a coherent system of legal thought which actually makes rational sense only when related to all the other parts of the system.¹ Accordingly, unless the system as a whole is understood in all its implications, some of the subtleties of the continental notion of a law of obligations can easily be missed.

1 THE NOTION OF A LAW OF OBLIGATIONS

The notion of a law of obligations goes back to Roman law where it was a category that consisted of personal actions (actiones in personam) which could be brought by one person against another named person. In Roman law, obligations was a sub-category of the law of things, ‘things’ (res) in this respect being construed widely to include not only physical things, but intangible forms of property embracing even obligations, or legal duties, to act and to refrain from acting. The other sub-category in the law of things was, to use a modern category, the law of property and this comprised of actions originally seen as being available against things (actiones in rem).² Today, one talks in terms of personal rights in respect of things (iura in personam); the law of obligations is now seen as 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.’⁴ The 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.⁵ An 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 basis in fact.⁸ With 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).⁹ The 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.¹¹ Obligational relations (iura) in Roman law were forms of intangible property (res incorporales).¹² Indeed, 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.¹⁴ The first category, contracts, consisted of a range of transactions such as sale, hire and loan where the common denominator was agreement (conventio) between two persons,¹⁵ while 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.¹⁷ Thus, 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;¹⁹ and 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.²¹ Agreement, 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;²² and thus the law of obligations can be sub-divided into these three subject areas.

(b)Obligations and actions

Despite the development of a substantive law of obligations, Roman law never lost sight of the means by which an obligation found expression at Law of Obligations and Legal Remedies one and the same time in law and in society. The law of things (property and obligations) was largely about the existence or non-existence of a legal action on behalf of one person against another person. Is P entitled to an actio against D for damage suffered by P when D sold him wine that turned out to be sour? Can a passer-by bring an action against a pruner for injury caused by falling branches? Can an owner of a cow bring an actio in rem against the thief of the cow even although the thief no longer possesses the animal? In order to decide if such actions were available within particular factual situations the Roman jurists had recourse to arguments, opinions, legal and factual relations, rules and principles that formed part of the law of obligations. Yet at the same time they applied relations, rules and principles that attached to the remedy (actio) itself since law was not just about relations between people and things, but also about actions. Accordingly, in addition to a Law of Things, the Institutes of Gaius has a book devoted to the Law of Actions and in order to have a comprehensive knowledge of the law of obligations one must have also have knowledge of actions.²³

Actions, as Jolowicz pointed out, do not form part of the civil codes in that they are no longer considered as part of substantive law (the law of rights).²⁴ They have been relegated to separate codes of procedure. Nevertheless the law of actions is fundamental to our understanding of problem-solving in Roman law not only because there were separate actions for different kinds of transactions, wrongs and unjust enrichment situations, but also because the actio was one means by which factual situations were analysed. Roman jurists would often start out from situations where an actio might be available and, by gradually altering the factual situation, arrive at hypothetical situations where an action would not be available.²⁵ It was in this way that the professional jurists expanded and developed private law.

(c) Obligations, actions and reasoning

Take the following example from the delict of theft (a tort in Roman law). The jurist Ulpian (160–228 AD) asks who will have the action for theft if a letter he sends to another is intercepted before it arrives.²⁶ In order to answer this remedy question one must first ask, says the jurist, who did the letter belong to: was it the sender or the addressee? If the sender had given it to the slave of the addressee, then the latter would be the owner because he would acquire through the slave. And the same would be true if the letter was given to the addressee’s agent, especially if the addressee had an interest (interfuit) in becoming the owner. On the other hand, if the sender had sent the letter on the understanding that it would be returned to him, then he would retain ownership. Having discussed these concrete situations, Ulpian returns to the question of who had the action. It is the person who had an interest in the letter not being stolen, that is to say the person who benefited from its contents. Does this mean that the messenger could bring the action? The jurist replies that he might well have an action since, if he were responsible for carrying it safely, he would have a personal interest in the letter being delivered. For example, if the messenger had expressly undertaken to look after the letter, or if he was to be paid for delivering it, he would be strictly responsible for the letter in the same way as an innkeeper or shipmaster. As they had the action for theft, so should the messenger.

This example is revealing for a number of reasons. First, it shows how the law of delict (tort) is dependent upon other areas of the law such as the law of property and the law of contract. In order to decide who will have the action it is necessary to decide between which two persons there is a vinculum iuris, the legal obligation which will act as the ‘mother’ of the action. But in order to decide this, one must decide first who has the legal bond with the res (letter). The law of obligations is dependent upon the law of property. Ownership might, in its turn, be dependent, inter alia, on the law of persons (status). If the messenger is a slave the addressee will automatically acquire ownership; if he is not a slave, then possession might be acquired by the addressee since one can acquire possession through another person (persona libera). However, it transpires that it is not ownership as such...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface to the First Edition
• Preface to the Second Edition
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of International Legislation
• General Abbreviations
• Reference Abbreviations
• Preliminary Remarks
• Chapter 1: General Introduction
• Part I: The Law of Actions
• Part II: The Law of Obligations