The Roman Law of Obligations Part B General Principles of the law of obligations The law of obligations is characterised by a right to claim a specific performance from a specific person This is a personal right which can be enforced with the aid of a personal action Definition of obligation: a legal bond between 2 or more parties, one of which had a personal right (creditor) against the other party (debtor) to enforce a particular performance, while the debtor is under obligation to the creditor to perform Creditor has personal right to performance Debtor has obligation to perform Sources of obligations Contracts: in roman law not every agreement gave rise to an obligatory contract. To create an enforceable contract, the element of causa contractus had to be present: The 4 types of contracts recognized by Roman law: Agreement + delivery of a thing = contractus re Real contracts created by agreement followed by delivery of a thing Examples: loan for consumption, loan for use, deposit and pledge Agreement + formal words = contractus verbis Agreement followed by the use of certain formal words Example: Stipulatio where only one party promises the other party that he will perform Agreement + writing = contractus litteris Agreement followed by a written document or written entry into a ledger Example: Agreement = contractus consensu A consensual agreement (no further requirements) Examples: contracts of purchase and sale, letting & hiring, mandate & the contract of partnership Later on, if an agreement did not fall into any of the above 4 categories, the praetor could intervene and hold the parties to an agreement, despite that no contract existed. Eventually this led to the position where a mere agreement could give rise to a contract = relevant today! Example: Conradie v Rossouw 1919 AD 279 at 320 Appeal Judge Solomon formulated the principle that is still accepted as the basis for the existence of a contract today: An agreement between 2 or more persons entered into seriously and deliberately is enforceable by action
The Roman Law of Obligations Part B General Principles of the law of obligations The law of obligations is characterised by a right to claim a specific performance from a specific person This is a personal right which can be enforced with the aid of a personal action Definition of obligation: a legal bond between 2 or more parties, one of which had a personal right (creditor) against the other party (debtor) to enforce a particular performance, while the debtor is under obligation to the creditor to perform Creditor has personal right to performance Debtor has obligation to perform Sources of obligations Contracts: in roman law not every agreement gave rise to an obligatory contract. To create an enforceable contract, the element of causa contractus had to be present: The 4 types of contracts recognized by Roman law: Agreement + delivery of a thing = contractus re Real contracts created by agreement followed by delivery of a thing Examples: loan for consumption, loan for use, deposit and pledge Agreement + formal words = contractus verbis Agreement followed by the use of certain formal words Example: Stipulatio where only one party promises the other party that he will perform Agreement + writing = contractus litteris Agreement followed by a written document or written entry into a ledger Example: Agreement = contractus consensu A consensual agreement (no further requirements) Examples: contracts of purchase and sale, letting & hiring, mandate & the contract of partnership Later on, if an agreement did not fall into any of the above 4 categories, the praetor could intervene and hold the parties to an agreement, despite that no contract existed. Eventually this led to the position where a mere agreement could give rise to a contract = relevant today! Example: Conradie v Rossouw 1919 AD 279 at 320 Appeal Judge Solomon formulated the principle that is still accepted as the basis for the existence of a contract today: An agreement between 2 or more persons entered into seriously and deliberately is enforceable by action
FLS1502-notes_for_fls1502.docx