A Historical Introduction to the Law of Obligations

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Professor Simon Deakin FBA is Professor of Law and a specialist in European labour and company law as well as a leading authority on tort law. David Ibbetson has been at the forefront of legal historical scholarship for four decades. He began his legal historical studies at Corpus Christi College in Cambridge, reading Law as an undergraduate and staying on for a doctorate on the development of assumpsit under John Baker. He moved to Oxford to take up a Fellowship at Magdalen College in 1980, where he spent the next twenty years developing research interests spanning English legal history, European legal history, the law of ancient Rome and pre-Roman legal systems. He returned to Cambridge in 2000 to take up the Regius Professorship of Civil Law, and to Corpus where he took a particularly central role in the mentoring of the graduate community. His work in fostering graduate communities made him an ideal fit for Clare Hall, where he was President between 2013 and 2020. The substance of obligations does not consist in that it makes some property or servitude ours, but it binds another person to us to give, do or be responsible for something. An inquest into the death of Emiliano Sala is scheduled to take place on February 14 next year at Bournemouth Coroners' Court. Lawyers today rather take it for granted that there is a branch of the law called the law of obligations , including at the very least contract and tort , and that there is something called an obligation, designating the situation where one person is legally constrained to do or abstain from doing something to another. But neither of these is obvious, and it is highly likely that both are the products of Roman jurisprudence. It is true that in his treatment of justice in the Nicomachean Ethics Aristotle linked together contract and wrongdoing, the voluntary and involuntary types of sunallagmata— transactions or interactions —that might generate a requirement of corrective justice, but it goes too far to identify Aristotle’s sunallagma with the Romans’ obligatio: the former is an interaction that gives rise to corrective justice, the latter the abstract consequence of such a transaction .

Conventionis nomen generale est, ut eleganter dicat Pedius nullum esse contractum, nullam obligationem, quae non habeat in se conventionem, sive re sive verbis fiat: nam et stipulatio, quae verbis fit, nisi habeat consensum, nulla est.

Summary

Plane owner Fay Keely is notified by Civil Aviation Authority of two airspace infringements committed by David Ibbotson. She tells David Henderson not to use the pilot again

In cross-examination, the following exchange took place between Henderson and prosecutor Mr Goudie. Although the obligatio connotes a relationship between persons, in a specific context it might refer to that relationship from the standpoint of the person bound. This is clear, for example, [when]… One person makes a stipulatio with his neighbour that his eaves might project over the neighbour’s land, and then buys a second property. It is said that the original stipulatio (probably) does not apply to the second house, lest the obligatio promissionis be increased. When the senatus consultum Velleianum regulated obligationes of women, it was transparently referring to their being bound . Similarly, a transfer of a slave to be freed by the transferee after the death of the transferor is said to create an obligatio, i.e. an obligation on the transferee to free the slave; and a fideiussor can fall under an obligatio. On entry into a hereditas , the heir takes on (suscipit) the obligationes of an inheritance, a procurator may take on the obligationes of his principal, a son or slave should be relieved of an obligatio, and more generally a person may be freed from an obligatio . An obligatio could be transferred from fideiussor to freedman, or from a solvent to an insolvent debtor, or a noxal obligatio can be transferred where another person confesses that he or she is the owner of a slave whose wrong is the basis of a claim. When it is said that an obligatio would be made more burdensome, it cannot be anything but the burden to the person who is under the obligation that can be meant. Finally, although it is a new relationship that is created when an obligatio is novated, the focus is on the new liability that comes into existence rather than on the new right . More specifically it might flow from a delict , from the giving of a dowry , from a legacy or from a judgement . Here, unequivocally, there is an identification of obligatio with contract ; and even if the reference to obligatio is interpolated (and there is no strong reason to think that it is), the text shows that someone at some time believed them to be equivalent , and that this was not so outlandish that it was excised by Justinian’s compilers. While it is, of course, nonsense within the institutional structure to say that every obligatio is based on agreement—most obviously those obligations which arise out of delict have no element at all of agreement within them—there is nonetheless a close connection between obligatio and contract .

The basic division of all obligations is into two genera: for they are either civil or praeto- rian. Civil are those which are constituted by statutes or at least recognised by the ius civile. Praetorian are those which the praetor has established out of his own authority, which are also called honorary. An obligatio is a tie of law by which we are of necessity constrained to pay some thing according to the laws of our civitas. Omnium autem obligationum summa divisio in duo genera deducitur: namque aut civiles sunt aut praetoriae. Civiles sunt, quae aut legibus constitutae aut certe iure civili comprobatae sunt. Praetoriae sunt, quas praetor ex sua iurisdictione constituit, quae etiam honorariae vocantur.