Exam (elaborations)
ROMAN LAW_ OBLIGATIONS AND CONTRACT (1).
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ROMAN LAW_ OBLIGATIONS AND CONTRACT (1).
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ROMAN LAW: OBLIGATIONS AND CONTRACTAssets can be divided into either property and obligations.
The key difference between the two is being owed something (an obligation/ a right) or owning
something.
In Roman law this difference is expressed as an action in rem (between person and thing,
against anyone who interferes with your rights over property) and an action in personam (action
between persons against someone who has an obligation to you). - ANS-PROPERTY V
OBLIGATIONS
It is the relationship that imposes a duty on one person and a right for the other. They person
with the duty is metaphorically bound, released from his obligation upon its fulfilment. -
ANS-WHAT IS AN OBLIGATION?
G 3.182
For Gaius obligations arose under two heads: ex contractu ad ex delicto.
He further splits each heading into four catergories.
Ex delictio is split into: furtum, rapina, damnum iniuria datum, and iniuria which lead to one kind
of obligation.
G 3.89
For ex contractu he adopts a fourfold split once more, obligations are contracted by: re, verbis,
litteris or consensu - ANS-HOW DID GAIUS ORGANISE THE LAW OF OBLIGATIONS?
Justinian uses a similar structure to Gaius however he also adds 2 more further divisions to
Gaius' headings of: quasi ex contractu (quasi-contracts), and quasi ex declicto (quasi-delicts). -
ANS-HOW DOES JUSTINIAN ORGANISE THE LAW OF OBLIGATIONS?
Quasi-delicts encompass actions that are analoguous to delict but do not fit within that category.
Examples are if a judge misconducts a case, occupier of a building damages something by
throwing it out of a window, employer's slaves/ employee causes theft/ damage. These people
would all be held liable.
On this basis quasi-delict can be viewed as the unintentional wrong to delicts intentional?
However damnum iniuria datum does not require intention.
Could be vicarious liability, where liability is derivative. But then this would include noxal liability
and the judges liability is quite forced.
, Strict liability? Only proving the wrong occured. Quite broad and vague. - ANS-WHAT IS
QUASI-DELICT?
Some obligations were not wrongful in nature, but could not fit into the category of contract as
they miss out an element of contract such as there was no agreement element.
Quasi contracts are important for negotorium gestio - someone who does something for
another's benefit and seeks later compensation.
Also important for for unjust enrichment- someone is enriched at another's expense, a
quasi-contract can be used for their recompense. - ANS-WHAT IS QUASI CONTRACT?
- Alphabetically
- Bilateral and Unilatel
- By the content of the obligation - ANS-ARE THERE ALTERNATIVES TO HOW THEY COULD
BE CLASSIFIED?
G 3.91
Mutuum is the loan for consumption which involved the transfer of ownership and the return of
the equivalent. Gaius mentions it as an obligation arising res.
Gaius compares mutuum and obligation arising re when somthing is paid over the mistaken
belief that it is owed (unjust enrichment). The difference is the lack of agreement.
Justinian says it 'is as if from contract' as there is a transfer of ownership and delivery of the
thing, But there is no agreement. - ANS-DISTINGUISHING CONTRACT FROM UNJUST
ENRICHMENT
Some say there is no liability because there would not be if mutuum had been made under such
circumstances.
Gaius points out that this obligation does not seem to rise out of contract, liable because of a
different contract which does not actualy rise out of contract. - ANS-GAIUS EXAMPLE OF THE
PAYMENT OF THE WOMEN/ PUPIL WITHOUT AUTHORISATION OF A TUTOR
Unliateral - creates rights only for one party and duties for the other
Bilateral - give rise to reciprocal obligations, e.g. sale (payment and delivery) -
ANS-UNILATERAL AND BILATERAL DIVISION OF CONTRACT
Formalities: can be added to the natural form of a contract (e.g. requiring a seal), or used to
restrict types of contract (e.g. requiring writing)
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