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Chapter VI - OBLIGATIONS: GENERAL

Published online by Cambridge University Press:  30 March 2010

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Summary

INTRODUCTORY

The elementary text-book of Gaius, followed by Justinian, after dealing with property and succession, enters upon a subject called Obligationes. Gaius describes this as consisting of contract and delict, to which Justinian adds quasi-contract and quasi-delict. Even so expanded the Roman obligationes are far from covering the whole field of what in modern theory are called iura in personam. It was not in accordance with the casuistic methods of the Roman lawyers, any more than it would be with us (we can hardly be said to have adopted the word), to seek for an exact definition of the abstract notion of obligatio. The word itself does not seem to be used as a legal term till the Empire. Obligationes are a group, within the field of what modern jurisprudence calls iura in personam, but no more covering the field of iura in personam than our treatises on contract, quasi-contract and tort cover that field.

For Gaius, obligatio is a notion which belongs entirely to the ius civile. No praetorian right or duty can be an obligatio, although jurists writing well after the Edict had been stabilised by Julian sometimes speak of obligatio in relation to praetorian rules. Justinian includes among obligations a few praetorian liabilities, under the rubric of quasi-delict, but in the main he follows the lines of Gaius: no agreement which gave rise to a merely praetorian right of action came for him, any more than for Gaius, under the head of contract.

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Roman Law and Common Law
A Comparison in Outline
, pp. 193 - 236
Publisher: Cambridge University Press
Print publication year: 1952

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