Dowery

SEMINAR TOPIC ON

SUBMITTED IN ORIGINAL To Prof. (Dr.) Mohd. Hussain BY Tanveer Ahmad Roll No. 04 LL.M 2nd sem CONTENTS * ABSTRACT * INTRODUCTION * HISTORY * NATURE OF OBLIGATIONS * ESSENTIALS OF OBLIGATIONS * SOURCES OF OBLIGATIONS * SOLIDARY OBLIGATIONS * TYPES OF SOLIDARY OBLIGATIONS * CONCLUSION

Introduction:
The word ‘obligation’ is derived from the Latin "obligare" which comes from the root “lig" which suggests “being bound”, as one is to God; for instance in "re-ligio".
Obligations did not originally form part of Roman law, which mostly concerned issues of succession, property, and family relationships. It developed as a solution to a gap in the system, when one party committed a wrong against another party. These situations were originally governed by a basic customary law of revenge. This undesirable situation eventually developed into a system of liability where people were at first encouraged and then essentially forced to accept monetary compensation from the wrongdoer or their family instead of seeking vengeance. This signaled an important shift in the law away from vengeance and towards compensation. The state supported this effort by standardizing amounts for certain wrongs. Thus the earliest form of Obligation law derives out of what we today call “Delict”. The person entitled to the benefit of an obligatio was in Roman law termed creditor, while he who was bound by it was called debitor.
However, it is important to note that liability in this form did not yet include the idea that the debtor "owed" monetary compensation to the creditor; it was merely a means of avoiding punishment. If the debtor or his family didn 't have the means to pay then the old rules still applied as outlined in the Twelve Tables specifically in Table 3. This section, despite how harsh it may appear to us, was originally developed as a means to protect debtors from the excessive abuses of creditors. | |
Today the term Obligation, as it applies within civilian legal systems, means more specifically a legal bond between two or more persons, by which one person, the debtor, is held liable to another, the creditor, to perform a "prestation" consisting of "doing" or "not doing" something at the risk of legal sanction. Thus the term encompasses both sides of the equation, both the duty of the debtor and the right of the creditor.
Nature of obligations:
The law of obligations regulates the rights and duties arising between individuals. The specific rights and duties within this area of the law can themselves be referred to as obligations. Although obligations may be about items of property, they have nothing to do with the distinct property rights that a person may have in a thing. Generally, an obligation will be that a particular person will do, or will avoid doing a specified act. Obligations also differ from real rights as they only relate to specific relationships. This means that certain individuals – usually those within that relationship – can only enforce them. Furthermore, these rights may only be enforced against other specific persons. For this reason the rights enforceable under the law of obligations are also known as 'personal rights '. In all cases the person to whom an obligation is owed is known as the obligee or creditor, whereas the person who must perform the obligation can be referred to as the obligant or debtor. Obligations are duties which are owed by one person to another. Corresponding to such duties are rights of the one to whom the duty is owed to ensure that the obligation is complied with. Thus, the class of individuals against whom an obligation may be enforced, and who indeed may enforce the obligation, is generally limited. For this reason, obligations are also referred to as ‘personal rights’. There are various ways in which an obligation may be created. However, all obligations may be broadly categorized in one of two ways, depending upon the method of their formation. Thus, obligations may be classified as being either voluntary or involuntary.
Obligations are regarded as voluntary where the parties to the obligation have exercised their will for its formation. Examples of voluntary obligations recognized are that of contacts and promises. Alternatively, involuntary obligations do not consider the intentions of the parties, but are created by the operation of the law. Such obligations are also occasionally referred to as being obediential. Examples of this category include the laws of delict and that of unjustified enrichment.

JUSTINIAN Justinian first defined Obligation in his “Institutiones”, as "a legal bond, with which we are bound by necessity of performing some act according to the laws of our state”. He further separates the law of obligations into contracts, delicts, semi-contracts, and semi-delicts.
SALMOND
According to Salmond, Obligation in its popular sense is merely a synonym for duty. Its legal sense, derived from Roman law, differs from this in several respects. In the first place, obligations are merely one class of duties, namely, those which are correlatives of rights in personam. An obligation is vinculam juris, or bond of legal necessity, which binds together two or more determinate individuals. It includes the duty to pay a debt, to perform a contract, or to pay damages for a tort, but not the duty to refrain from interference with the person, property or reputation of others. The term obligation is the name not only of a duty but also of a correlative right. Looked at from the point of view of the person entitled, an obligation is a right. Looked at from the point of view of the person bound, it is a duty. Moreover, all obligations pertain to the sphere of proprietary rights. They form a part of the estate of the person who is entitled to them. Rights which relate to a person’s status, such as those created by marriage, are not obligations, even though they are rights in personam. An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right.
HOLLAND
According to Holland: “An obligation, as its etymology denotes, is a tie whereby one person is bound to perform some act for the benefit of another. In some cases, the two parties agree thus to be bound together; in other cases, they are bound without their consent. In every case, it is the law that ties the knot and its untying, solutio, is competent only to the same authority”. When a man owns an estate, a general duty is laid upon all the world to refrain from trespassing on his land. If he contracts with a landscape gardener to keep his grounds in order for so much a year, then the gardener owes to the land owner a special duty, over and above the duty owed to him by all the world. If a surgeon is practicing in a town, while there is a duty incumbent on all not to intimidate patients from resorting to him, or otherwise molest him in the exercise of his profession, there is no general duty not to compete for his practice. Anyone may legally establish a rival surgery next-door. Suppose, however, that the surgeon has bought his business from a predecessor, who in consideration of being well paid, has covenanted not to practice within twenty miles of the town in question. Here the predecessor, beyond and above the duties owed by others to his successor, owes him a special duty of not competing with him by the exercise of his profession in the neighborhood. In the cases supposed, the land owner and the practicing surgeon have respectively rights in personam against the gardener and the retired surgeon, over and above the rights in rem which they enjoy as against everyone.

PATON & KANT According to Paton, an obligation is that part of the law which creates rights in personam. According to Kant, an obligation is “the possession of the will of another as a means of determining it through my own, in accordance with the law of freedom, to a definite act”.
SAVIGNY
According to Savigny, an obligation is “the control over another person yet not over this person in all respects (in which case his personality would be desired), but over single acts of his which must be conceived of subtracted from his free will and subjected to our will”.
Essentials of obligations:
Every obligation has four essential requisites otherwise known as the elements of obligation. They are: 1. A passive subject (called debtor or obligor): the person who is bound to the fulfillment of the obligation. 2. An active subject (called creditor or obligee): the person who is entitled to demand the fulfillment of the obligation. 3. Object or prestation: subject matter of the obligation 4. A juridical or legal tie: the vinculum; the efficient cause that binds or connects the parties.
A technical synonym for an obligation is a chose in action or a thing in action. A chose in action means, in our modern use of it, a proprietary right in personam; for example a debt, a share in a joint –stock company, money in the public funds, or a claim for damages for a tort. A non-proprietary right in personam, such as that which arises from a contract to marry, or from the contract of marriage, is no more a chose in action in English law than it is an obligatio in Roman law. Choses in action are opposed to choses in possession. In its origin, a chose in possession was anything or right which was accompanied by possession and a chose in action was anything or right of which the claimant has no possession but which he must obtain, if need be by way of an action at law. Money in the purse of a person is thing in his possession. Money which is due to a creditor by a debtor is a thing in action. According to Dias and Hughes: “Choses in action have been defined as all ‘personal rights of property which can only be claimed or enforced by action and not by taking physical ‘possession’, in short, they are rights in personam which are ‘proprietary’. Choses in possession mean things capable of physical possession and delivery, i.e., tangible objects”.

Sources: Classed in respect of their sources or modes of origin, the obligations recognized by English law are divisible into following four classes:-
Contractual- Obligationes ex contractu. Delictal- Obligations ex delicto.
Quasi-contractual- Obligations quasi ex contractu. Innominate. (A) Contractual- Obligationes ex contractu:
Contractual obligations are those which are created by contracts or agreements. These obligations create rights in personam between the parties. The rights so created are generally proprietary rights. Sometimes, a contract creates rights which are not proprietary though they are in personam. An example of such an obligation is a promise of marriage. At the beginning, the idea of an obligation was strictly personal under the common law, choses in action were not assignable. Later on, negotiable instruments came to be assigned. The Judicature Act of 1873 made all debts and legal choses in action assignable at law. There are still certain rights which cannot be transferred and those are the assignment of a mere right to sue for damages in tort or a right to personal services without the consent of the person bound.

(B) Delictal- Obligations ex delicto: Delictal obligations are those which arise from torts. According to Salmond: “A tort may be defined as a civil wrong for which the remedy is an action for damages and which is not solely the breach of contract or the breach of trust or other merely equitable obligations”. Delictal obligations are those in which a sum of money is to be paid as compensation for a tort. A distinction may be made between a contractual obligation and a delictal obligation or tort. A contract is based on consent but a tort is inflicted against or without consent. Privtiy between the parties is implied in a contract but that is not so in the case of a tort. In a contract, the right or duty arises from an agreement between the parties. The duty in a contract cannot be enforced by a third party but only by the parties to the contract. In the case of tort, there is a breach of general law and consequently anybody from the acts of another can file a suit. A breach of contract is a violation of a right In personam. A tort is mostly a violation of right in rem. There is no place for motive in breach of contract but motive is taken into consideration in a tort. If there is a breach of contract, damages are in the nature of compensation. In the case of tort, damages may be exemplary or vindictive in the case of malice or fraud. The measure of damages can be fixed according to the terms of the contract between the parties but in the case of tort, it is not possible to fix the damages with precision. Originally, a tort was recognized in common law but a breach of contract was recognized only by the court of chancery.

(C) Quasi-contractual Obligations quasi ex contractu: Quasi-contractual obligations are such as are regarded by law as contractual though they are not so in fact. These obligations are called by Salmond by the name of “contracts implied in law”. There are cases in which law departs from the actual facts and implies a contract by fiction. A quasi-contractual obligation is something the effect of which resembles the effect of a contract. However, it is to be observed that all implied contracts are not quasi contracts. An implied contract may be either “implied in law” or “implied in fact”. Although the former is not a true contract, law regards the obligation as if it were in the nature if a contract. The latter is a true contract and is based on the agreement between the parties. A quasi-contractual obligation arises were the law fictitiously attaches a contract. A money decree creates an obligation which is not contractual. There is no agreement to pay. However, the law presumes that there is a duty to pay and also promise to pay. This is quasi-contractual obligation. If I enter a train, it implies that I agree to pay the railway fare. My obligation is truly, a contractual one.

(D) Innominate obligation: Innominate obligations are those obligations which are other than those falling under the heads of contractual obligations, delictal obligations and quasi-obligations. Examples of such obligations are the obligations of trustee towards their beneficiaries and other similar equitable obligations.
Solidary obligations:
The normal type of obligation is that in which there is one creditor and one debtor. However, it often happens that there are two or more creditors entitled to the same obligation, or two or more debtors under the same liability. The case of two or more creditors does not require special consideration. However, the case of two or more debtors calls for special notice. Examples of solidary obligations are debts owing by firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties and the liability of two or more persons put together commit a tort. In all these cases, each debtor is liable for the whole amount due. The creditor is not obliged to divide his claim into as many different parts as there are debtors. He may exact the whole sum from one and leave him to recover from his co-debtors, if possible and permissible, a just proportion of the amount so paid. A debt of Rs. 1000 owing by two partners, X and Y, is not equivalent to one debt of Rs. 500 owing by X and Rs. 500 owing by Y. it is a single debt of Rs. 1000 owing by each of them, in such a fashion that each of them may be compelled to pay the whole of it, but when it is once paid by either of them both of them are discharged from the debt.

Kinds of solidary obligation:

(A) Several solidary obligations:
Solidary obligations are several when, although the thing owed is the same in each case, there are as many distinct obligations and causes of action as there are debtors. Each debtor is bound to the creditior by a distinct and independent vinculum juris, the only connection between them being that in each case the subject matter of the obligations the same with the result that performance by one of the debtors discharges all others. When A has received a loan from C under a promissory not executed by him on a particular date and at a subsequent date B guarantees the same debt of A by executing a surety bond, the liability of both A and B is several.

(B) Joint solidary obligation: Solidary obligations are joint when though there are two or more debtors; there is only one debt or other cause of action, as well as only one thing owed. The vinculum juris is single, though it binds several debtors to the same creditor. The chief effect of this unity of the obligation is that all the debtors are discharged by anything which discharges any one of them. If A and B execute the same bond on the same date and A receives loan, B being only a surety, the liability is one of the joint solidary obligation. The obligation of partners in a firm is a joint solidary obligation. (C) Joint and several solidary obligations: Certain solidary obligations are both joint and several. They stand halfway between several and joint obligations. They are the product of a compromise between two competing principles. For some purposes, the law treats them as joint and for other purposes as several. For some purposes, there is in the eye of law only one single obligation and cause of action, while for other purposes the law consents to recognize as many distinct obligations and causes of action as there are debtors. Under section 43 of the Indian contract Act, the liability is joint and several unless there is agreement to contrary. The result is that if a promise is made by A, B and C to X, X may sue, at his option A only, or B only or C only or any two or all three of them. In case the entire promise is performed by say A alone, he can claim to be reimbursed by B and C for their proportionate shares.

Bibliography: * Jurisprudence………………………………….. Dias. * Jurisprudence…………………………………..Salmond. * Human Law and Human Justice…………….…Julius Stone. * Jurisprudence and Legal Theory……………….V.D. Mahajan. * Understanding Jurisprudence…………………..Raymond Wacks.

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[ 2 ]. Salmond on Jurispruedence, p.446
[ 3 ]. Holland on Jurisprudence, 13th edn. P.245

Bibliography: * Jurisprudence………………………………….. Dias. * Jurisprudence…………………………………..Salmond. * Human Law and Human Justice…………….…Julius Stone. * Jurisprudence and Legal Theory……………….V.D. Mahajan. * Understanding Jurisprudence…………………..Raymond Wacks. -------------------------------------------- [ 2 ]. Salmond on Jurispruedence, p.446 [ 3 ]. Holland on Jurisprudence, 13th edn. P.245