The concept of the word ‘obligation’ dates back to ancient Roman law. The word was defined as a legally binding relationship between two or more parties where one is compelled to do, or not to do something. The original notion of ‘obligation’ was to be found in the ‘Institutes of Justinian’, a book largely based on the ‘Institutes of Gaius’, published some 400 years before. According to this, an obligation is ‘a legal bond whereby we are constrained to do something according to the law of our state’. This very interpretation is used today and has proved very relevant in all present-day definitions of a law of obligation. In Roman Law two types of remedy established private law: Property rights, known as ius in rem and personal rights or ius in personam. However, the law of obligations is in part to be understood in contrast to the law of property, and in concern with personal rights. This is because the law of obligations is about owing rather than owning. The features of this are that rights and duties are in personam and these duties are incurred by parties. For example, if a person walked into a shop they would be incurring a duty to pay and thus the duty of the shop is to give. Furthermore, in general there are three sources of obligation, the two most significant being Contract and Delict (Tort). There are also ‘some special rights’ (Quasi Contract). In regards to Contract, the Roman’s developed a set of contractual ideas such as sale, hire, partnership and mandate which were known to be the 4 types of ‘consensual contract’. Each type had a set of implied terms. This change was arguably the most significant that they made, in particular the contract of sale. Previously entering a contract was extremely difficult. The procedures were always carried out orally. With consensual contracts, the first significant change was that they were now bilateral, meaning two contracts are combined. This very idea of contract is what is used and known today. Moreover, with these particular contracts, there are certain requirements. There must be a ‘meeting of minds’. There are of course aspects that will negate ‘a meeting of minds’ which will make the contract unenforceable. Error, Duress and Fraud are the main aspects. An ‘error in substantia’ is a common type of error. For example, if a person purchases a piece of clothing online but upon being delivered it is different to what was promised by the seller. Furthermore, capacity is another feature required to make a contract enforceable. Capacity is a specific term related to legal status. The Romans put citizens and non-citizens into different categories. For example, slaves were not able to enter into contracts. Only free people had the capacity to enforce contracts. Illegal contracts were another example which meant contracts couldn’t be enforced. Of course, this is still relevant today. The selling of drugs is an example. Finally, impossibility meant a contact would be void. To make a sale enforceable and valid, there are essential requirements. ‘An agreement about the thing sold and the price’. If these requirements are met, the sale is ‘perfecta’. This concept is clearly still in use today. As well as the development in contract, Delict was was another significant source of obligation. The Romans made advancements to deal with harm and wrongfulness and so obligations arose from theft, damage, robbery and insult. In order to make these obligations enforceable, one would have to fall into the categories. Although the Roman’s didn’t create the theory of delict, instead their system was a matter of claim for wrongful damage based upon fault (culpa).
PART B
Statistics show that the despicable act of contract killing still exists. In August 2018, the Sun newspaper released an article about the rise in assassins, especially amongst young people who are joining gangs. Despite the distressing topic, the law of obligations is apparent. It is quite clear that contract killing is an illegal agreement under the common law of contract, meaning it is unenforceable on the courts behalf because the purpose of the agreement is to achieve an illegal end. The court will usually leave the parties as they are at the time of the breach of contract. The court essentially views it as no contract exists and so neither party can recover loses. Illegal contracts also prevent contract rescission. In Roman Law, illegal contracts were void, and so quite clearly there is relation between ancient and modern law. In addition to this, other examples of illegal contracts include the trade in drugs. The same concept is applied. Illegal contracts are void and unenforceable by the court. A common modern day example is the sale of alcohol to people under the age of 18. Of course the same concept is enforced. Courts tend to review a series of factors when addressing an illegal case such as the seriousness of the illegality and how central the illegality is to the contract.
In regards to the Law of Tort, the Romans didn’t create the idea of ‘tort’ as such but instead they created a system which focused on claim for wrongful damage based upon fault. The modern day definition of ‘tort’ is a improper act leading to a legal liability. A recent example of tort (delict) concerns a 6-year-old boy who died from sepsis after the mistakes of a trainee paediatrician. Her errors included wrongly diagnosing Jack (the boy) with gastroenteritis. When he suffered a septic shock, leading to a call for doctors to revive him, he was mixed up with a discharged patient who had a ‘do not resuscitate’ instruction on his notes. Hadiza Bawa-Garba was convicted of gross negligence manslaughter. That said, she took the case to the Court of Appeal and managed to win her bid to be reinstated to the medical register. The relevant law is clear in this case. The doctor showed a lack of care in her work. She had a duty to Jack, but instead there was an obvious omission of her legal obligation to care. In fact, negligence in tort is a relatively new concept in English Law (1932). In reference to Roman Law, there isn’t a direct link with a particular feature of their system. The Roman belief was that a penalty should be paid if a wrong had been committed (Delict). Therefore, a simular concept of negligence existed during this time.
PART C
The historical origins of the law of obligations is useful and important to be understood. The study of contracts is arguably crucial in a western, capitalist society. A country like Britain is composed of businesses. Of course, without contracts, businesses could not function. Therefore it important to understand how they work and where they came from. In addition to this, contracts also help to create and distribute wealth (social wealth) and thus the comprehension is principal to ensure the continuation of this process. Furthermore, due to the issue of globalisation, lawyers in Britain and across the world are required to work across numerous jurisdictions. Therefore, knowing and understanding ancient Roman concepts would be beneficial. To conclude, it is arguably fascinating to see the similarities and the continuity of Ancient Roman Law to the legal system as we know it today.