Bonafonte's theory, the obligation Roman was born in archaic times within the field of crime. Originally, the commission of a crime did occur in favor of the victim or his family, a right for revenge eventually limited by the principle of retaliation, which, through a composition could become the law of the victim or his family require some provision of the offender or his family. To guarantee the fulfillment of such provision, a family member was ob-Ligatus guilty, or "bound" the domus of the victim as a kind of hostage.
Therefore, the former was a binding obligation to ensure the respect of benefits arising from crimes. Then, they develop the community with increased economic contacts between the domus, appeared, at times, the need for a paterfamilias lend securities to another: in this case, the creditor would have a guarantee and thus this "binding "delict was moved to the emerging field of Private Law.
Therefore, from the Roman period are used the word obligation in the sense of legal obligation, but also used for the giving of an undertaking, to designate the link Legal relationship between an active and passive subject, and even in the sense of the active subject of law (as in the expression obligationem acquired). It is more correct, in the first instance, speak of duty, concern, in the second to the specific source of the obligation in question, and say, as the case may conclude the contract, commission of crime, etc., And use, in the fourth case, the term obligation, the term debt is not necessarily refer to debts of money, but amounts to the general duty, in the same way to pay and payment (solvere and solutio) means to fulfill a duty and compliance.
Like other Roman concepts, the obligation was transformed over its legal life and therefore it is necessary to follow developments in different historical periods.
REAL AND PERSONAL RIGHTS
Rights composing the patrimony of individuals are divided into real rights and credit rights.
REAL RIGHTS: A subjective rights group meets under the name of real or customary rights over things. This name is not Roman, as the expression ius in re, is typical of the medieval Romanists. Real Rights, consisting of the various benefits that man can get a thing, are in limited numbers.
"The real law is a law, binding on any third party that allows the holder to the enjoyment of a thing, is in peak form he knows the legal (property) or in some limited form, as in the case of things real rights of others. "
is characteristic of these rights be enforceable against all reason, the modern dogma considered legal relationships in which all inhabitants of the planet, except the right holder, listed as taxpayers.
The modern laws have not increased their list. Being on more or less the same that existed in Roman law. Some have been organized by the Civil Law, and others have been approved and sanctioned by the Praetorian law: a) The Civil Law recognizes, first and implicitly, the property, which is the most comprehensive of all real rights, and for this reason the Romans confused often with the object, on the other hand, explicitly, easements, which easements are divided into personal and real servitudes or farm; b) Later, the magistrate granted in certain cases to individuals whose situation seemed worthy of favor protection of an action in rem, by which they could enforce against all their rights over a thing. Thus there was enshrined the new real rights, namely: the surface, the laws of the settlers in the agri vectigales, long lease and mortgage.
CREDIT RIGHTS OR OBLIGATIONS: We have seen that the laws that make up the patrimony of individuals are divided into real rights and credit rights, we concluded the study of real rights, and we need to talk about rights credit. They are also known obligations.
credit law, is indeed a relationship between two people, one of which, the creditor may require the other, the debtor, a particular fact appreciable in money. However, this relationship can be considered from two different viewpoints; side creditor, credit is a right which has an asset of his estate, debtor-side is an obligation, a debt listed on your person. The Roman jurists serve only a word bound in a broad sense, to designate the loan as well as debt. The theory of obligations is that the Romans have led to the highest degree of perfection.
"personal law, however, allows the holder to claim a certain person to perform a positive or negative can be a dare (pass control over something), facere (to perform an act with immediate effect) or praestare (perform an act without immediate visible consequences, as when a debt is guaranteed employment or when one becomes responsible for taking care of an object or is prepared to postpone the recovery of a claim). These concepts can be added those of non facere and pati (tolerate). "
is that she was the work of the very reason for the lawyers, that thoughtful interpreters of the will of the parties, were applied to develop its principles with the delicacy of analysis that was his own quality. Through his influence, the rules of the obligations, misappropriated soon to the original formula is expanded to the point that have come to constitute a common fund, applicable to customs and peoples of different civilizations.
So a pesar del importante puesto que ocupa en el Derecho , los legisladores modernos han podido aceptar esta teoría, en sus elementos esenciales, tal como los romanos la habían concebido.
La distinción sin embargo, no se plantea en el campo de los Derechos subjetivos, sino en el Derecho procesal romano, en materia de defensa de los Derechos patrimoniales; así, la actio in rem se opone a la actio in personam; mientras la primera representó la posición avanzada de la propiedad y de los otros Derechos sobre las cosas, la segunda fue la defensa normal de los Derechos personales.
La diferencia se basa sobre la intentio. La de la actio in personam afirma un deber jurídico del demandado, mientras la actio in rem membership of a thing to the actor, or the law to act in a certain direction on something, or non-membership of the same law to the defendant.
While the actio in personam could not be conceived but according to the legal duty to another, the actio in rem is directed in the first line to the thing sought is the subject of law, the defendant is an obstacle that stands between the actor and the thing.
DEFINITION AND ELEMENTS OF LIABILITY
Justiniano
defined institutions and the obligation: It is a bond of Rights that constrains us the need to pay anything under the law of our city. The obligation is thus compared to a bond from one to the other people among whom it was established; is, moreover, a purely legal loop. But if you hold the debtor, it limits their freedom, we should not derive from it the conclusion that it is a nuisance in society. Man can not be self-sufficient. Industry needs, the activity of their peers, is through the obligations for what you get and what gives itself reciprocal services. The more civilized a nation, it unfolds over the law of obligations, from which emerges the importance of this matter, which has steadily improved since the origins of Rome to this day.
From the definition of the obligation arise the three elements that make up: a) an active subject, the creditor may have one or more. Belongs to the creditor the right to require the provision of the debtor that is subject to the obligation. Civil law gives you, as a sanction of credit, personal action, ie the power to go to court authority to compel the debtor to repay what is owed. This sanction organized according to the principles of Roman civil law, characterizes the civil obligations, the ones that are real obligations, which consist of a loop of law.
In some cases, however, it was found that a person could support rather than according to natural law, it was a simple loop of equity. Consequences resulting from the lawyers and the magistrate eventually clear. But these imperfect obligations, so-called natural, have never been punished for an action. a) That the benefit of which had been recognized but could not count on a voluntary execution of the debtor; b) A taxable person, the debtor is the person who is obliged to seek the creditor of the object of the obligation. It may be one or several debtors, as one or more creditors. c) An object.
The purpose of the obligation is always an act which the debtor must make the benefit of creditors, and lawyers Romans perfectly expressed by a verb facere, whose meaning is very broad, comprising one abstention. Alongside this general formula are more accurate certain texts. Distinguished three categories the various acts which the debtor may be required, and summarized in these three verbs: dare, praestare, facere.
The obligation is always concerning an act of the debtor, who is personally liable, it follows that when she never even dare is, by itself or transferred property or other real right. The debtor is required to make such transfer only through special modes created for this purpose.
CONCEPT OF LIABILITY
Gayana institutions do not define the obligation, the commentary begins with a simple ad nunc-transeamus obligations. A definition that is attributed to a post classic Gayo annotator is in Justinian institutions: The obligation is a bond of law which compels us to the need to pay anything under the law of our city.
rei solvendae expression must be understood as referring to any kind of benefit, not just to deliver the thing.
If you look closely at the definition above, is that it is formulated on the basis of the taxpayer or debtor. This is because the obligation is a normal state limits the scope of a person (debtor) to benefit another (creditor) and thus can not last indefinitely, is destined to disappear, either when the obligation meets the promised service, in which case we say that there solutio (de-solvere) and occurs Liberatio the debtor, or when there are grounds for termination of other link.
We should also mention another concept of obligation to let the lawyer Paulo, exposed from the point of view of the active subject "substantially all of the obligations does not consent to make our one thing, tangible or an easement, but constrain other to us, to make and take something. "
As its etymology, the term comes from the Latin noun obligation obligatio; expression which in turn derives from the verb and the preposition ob ligare, which means to bind. Which means that the mere fact of assuming the obligation, the debtor is bound to the creditor.
In the old Roman law the obligation was the subject on which stood a free person to secure the debt he had contracted herself or another person. In typical case, was the practice of a loan followed by a nexum by which the debtor gave the creditor to pledge that their work or third party intervention extinguished debt and obtained his freedom.
previous rigorous system ends in the year 326 a. AD, when the Lex Poetelia Papiria, abolished the practice of surrender of the person as security for civil debt, and established the principle that the debtor could only guarantee its debts with its own assets and not your body.
ELEMENTS OF LIABILITY
The obligation creates a bond, a league-vinculum ", which presupposes at least two subjects: one active and one passive, the first creditor subject to some extent the second debitor for you pay the appropriate action. Creditor and debitor expressions were used late, seems to be reus the accepted term in the old legal language for either subject. The link is a tie of law allows a creditor to use coercive means for the debtor to provide correct behavior. The object of the obligation was to conduct the debtor should see the benefit of the creditor, so a dare, facere or praestare.
debitum AND LIABILITY
The obligation includes the debitum two elements: "Schuld" of the Germans, ie the duty to provide certain conduct and accountability: "Haftung" that gives the creditor a means of execution. Such elements, however, always came together, as the debitum at first it was not strictly legal as against the debtor in default, the creditor could not get the execution or enforcement of the provision itself, because the obligation had not originally entail responsibility for it was born because it was necessary that the act causing the obligation (and, to the contractual promise) to add a new responsibility to substantiate the case of default. It is up to the time the debitum and responsibility are united in the same business when we can speak of obligation as at present known.
DIVISION OF DUTIES:
obligations can be divided as follows:
Civil-law obligations and the law of nations.
obligations of ius civile were those arising from contracts sanctioned by law Quiritarian: nexum, sponsio, etc., And the law of nations, which originated in contracts provided by this law, loan, sale, etc. At first they were only known Civil law obligations, which were limited, formalistic and only linked to cives. Thus, the sponsio that was verified by using solemn words. The obligations of the law of nations did not require the use of solemn formalities for its completion, were also accessible to foreigners, such as those born of the loan, deposit, purchase, etc.
-Civil and honorary.
in institutions of Justinian is said that the division of the obligations is limited to two classes: civil or praetorian, were civilians who were born by the laws, or recognized by civil law. Are praetorian, which the praetor has established its jurisdiction, also called honorary.
-In strict law (stricti iuris) and in good faith (bona fidei).
The first law came Quiritarian (nexum, stipulatio and contract litteris). The debtor in an obligation they must meet the minimum agreed, as shown in the following case. What you say to hold a mancipatio nexum or the force of law. So, the judge could not depart from the sacramental words which was observed as law, and refer to other foreign elements, as would be the alleged intention of the parties, equity, etc. In contrast to the obligations of good faith, the judge had the authority to interpret the obligation of the taxpayer, as well, was to establish the amount of the sentence, basing his ruling on fairness, on the presumed intention of the parties and other circumstances. In this type of obligations arising from bilateral contracts, the parties could claim compensation, the vices of consent, etc.
then pointed differences have faded with which he lost interest in the division that comment. As the magistrate, based on equity, given to the debtor of an obligation to accredit stricti iuris have been the victim of fraudulent behavior by the creditor, the exceptio doli, and in case of violence, causes exceptio quod metus: fear except .
-Civil and natural.
The former were provided with an action obligations, which allowed the court to compel the debtor to creditor in case of default, and the latter were those who even though they lacked actions produced legal consequences as well: the dissatisfied creditor could retain the amount you paid voluntarily by the debtor, but it could claim undue payment.
natural obligation could also ensure compliance through real and personal security, and it could be offset by novada and civil liability. As cases of natural obligations, may include: obligations of slaves to strangers, when family's son received a loan of money and after leaving the parental authority covered the lender shall, without avail Macedonian SC, no could claim that payment. Extinguished debt litis by Contestatio, the obligation extinguished by capitis deminutio, etc. Together with previous natural obligations, are often inappropriate to point out the natural obligations on grounds of religious or moral, piety or morality. Such obligations could not be repeated if the law were met Justinian. As an example of them we provide food to relatives who civilly is not obliged to provide it, the constitution of a dowry by women in order to itself, if thought to be required, payment of funeral expenses of a relative, and the payment made by the mother to rescue the child slavery.
-divisible obligations and indivisible.
An obligation is divisible, if the provision can be run in parts without altering its essence is indivisible and otherwise. Are divisible those obligations designed to a dare. Indeed, property and other real rights may become pro part.
however, are not farm easements, for its division change its nature. Those obligations are indivisible consisting of a facere, eg painting a picture, because the supply can not be split. Indivisible obligations Classic law, are estimated solidarity, while the Justinian law considered several of the solidarity recognized in the case of several active or passive for the following purposes:
1. If there were several creditors, each of them could pursue the debtor for the whole debt, but the latter could require the creditor to charge, a bond that gets you to shed a further persecution from other creditors.
2 .- If you attend multiple owed to one creditor, it may pursue any of them for the whole, in turn, questioned the debtor may ask for time to go against his other co-debtors and demand before payment of compensation for their shares.
3 .- If under providing one of the debtors covers the entire debt could be brought against others to recover what was paid for his release through an action that varies according to the law relationships between them exists, it can be: dividundo community, family erciscundae the negotiorum gestorum, the pro-social, etc.
4 .- When the indivisible obligation resulting from such failure to compensate for the damages caused is divisible since these are always paid in cash.
5 .- Each debtor is responsible only for their own fault.
-general duties and obligations.
Generic
are those whose object is not determined individually, but only by their general traits, eg, a slave, ten sacks of wheat, etc. The obligation is specific if it is about a certain object, individual and specific case: the slave estic. Interested
this division in case of loss of the thing by force majeure before completion of the obligation, in fact the case of general duties they are not extinguished by perishing of object: non censetur PERISH genus. The debtor remains liable, however, whether the specific thing perishes by accident, the debtor is free, i cui debetur perit species.
-alternative non-mandatory obligations.
The first are those who point to several benefits for the debtor to meet only one of them, either their choice or to the creditor. Example: aut decem dare stichum bominem. Under these obligations, the most interesting aspect is indudablemte that on the choice of provision to meet, it is normal that the choice be made by the debtor, unless otherwise agreed. The debtor had the power to change your mind (ius varandi) until payment, and if the election is for the creditor, the right to change his mind lasted until the litigation Contestatio (Law Classic) or until it has claimed in court one of the 0bjetos (Justinian law). The election law is passed to the heirs of the debtor or creditor, as they have one or the other. Problem
also important is that which relates to the loss of the things included in these obligations. This loss can be caused by the fact of the debtor, the creditor or by accident. In relation to this problem Classic law adopted solutions in line with the peculiar structure of the alternative obligation and the rules governing civil liability. Instead Justinian regime is summarized in two principles: 1. If the election is for the debtor and perish without fault of the right things, can be released from paying the aestimatio perished: 2 If something dies because of the debtor being in this election, and one without fault, is not released, giving the creditor the actio doli for redress. Concentration of the obligation on the object that has not perished in the first case, and extinction of the obligation in the latter were given solutions for the classics.
-optional obligations.
are those in which the debtor is obliged to comply with a specified service while reserving for itself the right of free meeting another. Thus, bound by a conviction for the damages caused by an animal from your property, could free delivery by Naxa deditio animal. It should be noted that the new object does not affect the substance of the obligation, that is, does not fit in but completely in solution obligation. Therefore, if the main object perishes by accident, the obligation is extinguished and the debtor is discharged.
SOURCES OF OBLIGATIONS
sources are called obligations to those facts to which the Roman law attributed effectiveness bring about a mandatory link between two or more people. According
Gayo, the obligations derived from two sources: the contract and crime, but the response cottidianae, comes a tripartite classification of the causes of obligations: obligations arise from the contract or the offense, or by some peculiar law of several species of cases, the doctrine today is inclined to believe that this division is classical and that Cottidianae Res Gayo which are attributed to it. The Roman jurists to refer to the third term, sometimes indicating that the obligation was developing them in a similar way as it unfolded that from a particular contract or crimes. In institutions
Justinian, the tripartite of the sources of obligations became cuatripartición: So from the obligations of a contract or a quasi, or a crime or a tort. Scientifically, the cuatripartición, arguably Justinian, had the single merit to reaffirm once and forever the concept of contract as an agreement of wills productive obligation.
This classification has the merit of pointing definitively what are the main sources of obligations, but that was defective in them do not fall all the facts that may give rise to an obligation, facts that under no circumstances were Justiniano unknown and was listing over his work. CONCLUSION
This classification of sources of obligations became insufficient as the Roman law was perfect. The lawyers, trying to determine the causes of the obligations sanctioned by the law acknowledge that can be bound without contract and crime has occurred, each obligation in Roman law takes a peculiar physiognomy, according to the cause that produced it. So the lawyers do not study the obligations themselves according to their general character, but merely describe the various sources from which they spring.
Normally, when the debtor complies with its obligations, they are extinguished, but the mere compliance with the obligation not dissolved, since this was a kind of constraint that required a separated, in terms reverse employees to be bound. This release is known by the name of contrarius actus. Therefore, for the extinction of the formal obligations be followed a procedure performed to reverse established.
So in the case of a loan held by the old contract nexum, extinction of obligations was achieved by acceptilatio (questions followed by a response), so, the mere payment did not extinguish the obligation; only in the classical age Civil Law recognized the payment as a means of extinguishing obligations.
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Therefore, the former was a binding obligation to ensure the respect of benefits arising from crimes. Then, they develop the community with increased economic contacts between the domus, appeared, at times, the need for a paterfamilias lend securities to another: in this case, the creditor would have a guarantee and thus this "binding "delict was moved to the emerging field of Private Law.
Therefore, from the Roman period are used the word obligation in the sense of legal obligation, but also used for the giving of an undertaking, to designate the link Legal relationship between an active and passive subject, and even in the sense of the active subject of law (as in the expression obligationem acquired). It is more correct, in the first instance, speak of duty, concern, in the second to the specific source of the obligation in question, and say, as the case may conclude the contract, commission of crime, etc., And use, in the fourth case, the term obligation, the term debt is not necessarily refer to debts of money, but amounts to the general duty, in the same way to pay and payment (solvere and solutio) means to fulfill a duty and compliance.
Like other Roman concepts, the obligation was transformed over its legal life and therefore it is necessary to follow developments in different historical periods.
REAL AND PERSONAL RIGHTS
Rights composing the patrimony of individuals are divided into real rights and credit rights.
REAL RIGHTS: A subjective rights group meets under the name of real or customary rights over things. This name is not Roman, as the expression ius in re, is typical of the medieval Romanists. Real Rights, consisting of the various benefits that man can get a thing, are in limited numbers.
"The real law is a law, binding on any third party that allows the holder to the enjoyment of a thing, is in peak form he knows the legal (property) or in some limited form, as in the case of things real rights of others. "
is characteristic of these rights be enforceable against all reason, the modern dogma considered legal relationships in which all inhabitants of the planet, except the right holder, listed as taxpayers.
The modern laws have not increased their list. Being on more or less the same that existed in Roman law. Some have been organized by the Civil Law, and others have been approved and sanctioned by the Praetorian law: a) The Civil Law recognizes, first and implicitly, the property, which is the most comprehensive of all real rights, and for this reason the Romans confused often with the object, on the other hand, explicitly, easements, which easements are divided into personal and real servitudes or farm; b) Later, the magistrate granted in certain cases to individuals whose situation seemed worthy of favor protection of an action in rem, by which they could enforce against all their rights over a thing. Thus there was enshrined the new real rights, namely: the surface, the laws of the settlers in the agri vectigales, long lease and mortgage.
CREDIT RIGHTS OR OBLIGATIONS: We have seen that the laws that make up the patrimony of individuals are divided into real rights and credit rights, we concluded the study of real rights, and we need to talk about rights credit. They are also known obligations.
credit law, is indeed a relationship between two people, one of which, the creditor may require the other, the debtor, a particular fact appreciable in money. However, this relationship can be considered from two different viewpoints; side creditor, credit is a right which has an asset of his estate, debtor-side is an obligation, a debt listed on your person. The Roman jurists serve only a word bound in a broad sense, to designate the loan as well as debt. The theory of obligations is that the Romans have led to the highest degree of perfection.
"personal law, however, allows the holder to claim a certain person to perform a positive or negative can be a dare (pass control over something), facere (to perform an act with immediate effect) or praestare (perform an act without immediate visible consequences, as when a debt is guaranteed employment or when one becomes responsible for taking care of an object or is prepared to postpone the recovery of a claim). These concepts can be added those of non facere and pati (tolerate). "
is that she was the work of the very reason for the lawyers, that thoughtful interpreters of the will of the parties, were applied to develop its principles with the delicacy of analysis that was his own quality. Through his influence, the rules of the obligations, misappropriated soon to the original formula is expanded to the point that have come to constitute a common fund, applicable to customs and peoples of different civilizations.
So a pesar del importante puesto que ocupa en el Derecho , los legisladores modernos han podido aceptar esta teoría, en sus elementos esenciales, tal como los romanos la habían concebido.
La distinción sin embargo, no se plantea en el campo de los Derechos subjetivos, sino en el Derecho procesal romano, en materia de defensa de los Derechos patrimoniales; así, la actio in rem se opone a la actio in personam; mientras la primera representó la posición avanzada de la propiedad y de los otros Derechos sobre las cosas, la segunda fue la defensa normal de los Derechos personales.
La diferencia se basa sobre la intentio. La de la actio in personam afirma un deber jurídico del demandado, mientras la actio in rem membership of a thing to the actor, or the law to act in a certain direction on something, or non-membership of the same law to the defendant.
While the actio in personam could not be conceived but according to the legal duty to another, the actio in rem is directed in the first line to the thing sought is the subject of law, the defendant is an obstacle that stands between the actor and the thing.
DEFINITION AND ELEMENTS OF LIABILITY
Justiniano
defined institutions and the obligation: It is a bond of Rights that constrains us the need to pay anything under the law of our city. The obligation is thus compared to a bond from one to the other people among whom it was established; is, moreover, a purely legal loop. But if you hold the debtor, it limits their freedom, we should not derive from it the conclusion that it is a nuisance in society. Man can not be self-sufficient. Industry needs, the activity of their peers, is through the obligations for what you get and what gives itself reciprocal services. The more civilized a nation, it unfolds over the law of obligations, from which emerges the importance of this matter, which has steadily improved since the origins of Rome to this day.
From the definition of the obligation arise the three elements that make up: a) an active subject, the creditor may have one or more. Belongs to the creditor the right to require the provision of the debtor that is subject to the obligation. Civil law gives you, as a sanction of credit, personal action, ie the power to go to court authority to compel the debtor to repay what is owed. This sanction organized according to the principles of Roman civil law, characterizes the civil obligations, the ones that are real obligations, which consist of a loop of law.
In some cases, however, it was found that a person could support rather than according to natural law, it was a simple loop of equity. Consequences resulting from the lawyers and the magistrate eventually clear. But these imperfect obligations, so-called natural, have never been punished for an action. a) That the benefit of which had been recognized but could not count on a voluntary execution of the debtor; b) A taxable person, the debtor is the person who is obliged to seek the creditor of the object of the obligation. It may be one or several debtors, as one or more creditors. c) An object.
The purpose of the obligation is always an act which the debtor must make the benefit of creditors, and lawyers Romans perfectly expressed by a verb facere, whose meaning is very broad, comprising one abstention. Alongside this general formula are more accurate certain texts. Distinguished three categories the various acts which the debtor may be required, and summarized in these three verbs: dare, praestare, facere.
The obligation is always concerning an act of the debtor, who is personally liable, it follows that when she never even dare is, by itself or transferred property or other real right. The debtor is required to make such transfer only through special modes created for this purpose.
CONCEPT OF LIABILITY
Gayana institutions do not define the obligation, the commentary begins with a simple ad nunc-transeamus obligations. A definition that is attributed to a post classic Gayo annotator is in Justinian institutions: The obligation is a bond of law which compels us to the need to pay anything under the law of our city.
rei solvendae expression must be understood as referring to any kind of benefit, not just to deliver the thing.
If you look closely at the definition above, is that it is formulated on the basis of the taxpayer or debtor. This is because the obligation is a normal state limits the scope of a person (debtor) to benefit another (creditor) and thus can not last indefinitely, is destined to disappear, either when the obligation meets the promised service, in which case we say that there solutio (de-solvere) and occurs Liberatio the debtor, or when there are grounds for termination of other link.
We should also mention another concept of obligation to let the lawyer Paulo, exposed from the point of view of the active subject "substantially all of the obligations does not consent to make our one thing, tangible or an easement, but constrain other to us, to make and take something. "
As its etymology, the term comes from the Latin noun obligation obligatio; expression which in turn derives from the verb and the preposition ob ligare, which means to bind. Which means that the mere fact of assuming the obligation, the debtor is bound to the creditor.
In the old Roman law the obligation was the subject on which stood a free person to secure the debt he had contracted herself or another person. In typical case, was the practice of a loan followed by a nexum by which the debtor gave the creditor to pledge that their work or third party intervention extinguished debt and obtained his freedom.
previous rigorous system ends in the year 326 a. AD, when the Lex Poetelia Papiria, abolished the practice of surrender of the person as security for civil debt, and established the principle that the debtor could only guarantee its debts with its own assets and not your body.
ELEMENTS OF LIABILITY
The obligation creates a bond, a league-vinculum ", which presupposes at least two subjects: one active and one passive, the first creditor subject to some extent the second debitor for you pay the appropriate action. Creditor and debitor expressions were used late, seems to be reus the accepted term in the old legal language for either subject. The link is a tie of law allows a creditor to use coercive means for the debtor to provide correct behavior. The object of the obligation was to conduct the debtor should see the benefit of the creditor, so a dare, facere or praestare.
debitum AND LIABILITY
The obligation includes the debitum two elements: "Schuld" of the Germans, ie the duty to provide certain conduct and accountability: "Haftung" that gives the creditor a means of execution. Such elements, however, always came together, as the debitum at first it was not strictly legal as against the debtor in default, the creditor could not get the execution or enforcement of the provision itself, because the obligation had not originally entail responsibility for it was born because it was necessary that the act causing the obligation (and, to the contractual promise) to add a new responsibility to substantiate the case of default. It is up to the time the debitum and responsibility are united in the same business when we can speak of obligation as at present known.
DIVISION OF DUTIES:
obligations can be divided as follows:
Civil-law obligations and the law of nations.
obligations of ius civile were those arising from contracts sanctioned by law Quiritarian: nexum, sponsio, etc., And the law of nations, which originated in contracts provided by this law, loan, sale, etc. At first they were only known Civil law obligations, which were limited, formalistic and only linked to cives. Thus, the sponsio that was verified by using solemn words. The obligations of the law of nations did not require the use of solemn formalities for its completion, were also accessible to foreigners, such as those born of the loan, deposit, purchase, etc.
-Civil and honorary.
in institutions of Justinian is said that the division of the obligations is limited to two classes: civil or praetorian, were civilians who were born by the laws, or recognized by civil law. Are praetorian, which the praetor has established its jurisdiction, also called honorary.
-In strict law (stricti iuris) and in good faith (bona fidei).
The first law came Quiritarian (nexum, stipulatio and contract litteris). The debtor in an obligation they must meet the minimum agreed, as shown in the following case. What you say to hold a mancipatio nexum or the force of law. So, the judge could not depart from the sacramental words which was observed as law, and refer to other foreign elements, as would be the alleged intention of the parties, equity, etc. In contrast to the obligations of good faith, the judge had the authority to interpret the obligation of the taxpayer, as well, was to establish the amount of the sentence, basing his ruling on fairness, on the presumed intention of the parties and other circumstances. In this type of obligations arising from bilateral contracts, the parties could claim compensation, the vices of consent, etc.
then pointed differences have faded with which he lost interest in the division that comment. As the magistrate, based on equity, given to the debtor of an obligation to accredit stricti iuris have been the victim of fraudulent behavior by the creditor, the exceptio doli, and in case of violence, causes exceptio quod metus: fear except .
-Civil and natural.
The former were provided with an action obligations, which allowed the court to compel the debtor to creditor in case of default, and the latter were those who even though they lacked actions produced legal consequences as well: the dissatisfied creditor could retain the amount you paid voluntarily by the debtor, but it could claim undue payment.
natural obligation could also ensure compliance through real and personal security, and it could be offset by novada and civil liability. As cases of natural obligations, may include: obligations of slaves to strangers, when family's son received a loan of money and after leaving the parental authority covered the lender shall, without avail Macedonian SC, no could claim that payment. Extinguished debt litis by Contestatio, the obligation extinguished by capitis deminutio, etc. Together with previous natural obligations, are often inappropriate to point out the natural obligations on grounds of religious or moral, piety or morality. Such obligations could not be repeated if the law were met Justinian. As an example of them we provide food to relatives who civilly is not obliged to provide it, the constitution of a dowry by women in order to itself, if thought to be required, payment of funeral expenses of a relative, and the payment made by the mother to rescue the child slavery.
-divisible obligations and indivisible.
An obligation is divisible, if the provision can be run in parts without altering its essence is indivisible and otherwise. Are divisible those obligations designed to a dare. Indeed, property and other real rights may become pro part.
however, are not farm easements, for its division change its nature. Those obligations are indivisible consisting of a facere, eg painting a picture, because the supply can not be split. Indivisible obligations Classic law, are estimated solidarity, while the Justinian law considered several of the solidarity recognized in the case of several active or passive for the following purposes:
1. If there were several creditors, each of them could pursue the debtor for the whole debt, but the latter could require the creditor to charge, a bond that gets you to shed a further persecution from other creditors.
2 .- If you attend multiple owed to one creditor, it may pursue any of them for the whole, in turn, questioned the debtor may ask for time to go against his other co-debtors and demand before payment of compensation for their shares.
3 .- If under providing one of the debtors covers the entire debt could be brought against others to recover what was paid for his release through an action that varies according to the law relationships between them exists, it can be: dividundo community, family erciscundae the negotiorum gestorum, the pro-social, etc.
4 .- When the indivisible obligation resulting from such failure to compensate for the damages caused is divisible since these are always paid in cash.
5 .- Each debtor is responsible only for their own fault.
-general duties and obligations.
Generic
are those whose object is not determined individually, but only by their general traits, eg, a slave, ten sacks of wheat, etc. The obligation is specific if it is about a certain object, individual and specific case: the slave estic. Interested
this division in case of loss of the thing by force majeure before completion of the obligation, in fact the case of general duties they are not extinguished by perishing of object: non censetur PERISH genus. The debtor remains liable, however, whether the specific thing perishes by accident, the debtor is free, i cui debetur perit species.
-alternative non-mandatory obligations.
The first are those who point to several benefits for the debtor to meet only one of them, either their choice or to the creditor. Example: aut decem dare stichum bominem. Under these obligations, the most interesting aspect is indudablemte that on the choice of provision to meet, it is normal that the choice be made by the debtor, unless otherwise agreed. The debtor had the power to change your mind (ius varandi) until payment, and if the election is for the creditor, the right to change his mind lasted until the litigation Contestatio (Law Classic) or until it has claimed in court one of the 0bjetos (Justinian law). The election law is passed to the heirs of the debtor or creditor, as they have one or the other. Problem
also important is that which relates to the loss of the things included in these obligations. This loss can be caused by the fact of the debtor, the creditor or by accident. In relation to this problem Classic law adopted solutions in line with the peculiar structure of the alternative obligation and the rules governing civil liability. Instead Justinian regime is summarized in two principles: 1. If the election is for the debtor and perish without fault of the right things, can be released from paying the aestimatio perished: 2 If something dies because of the debtor being in this election, and one without fault, is not released, giving the creditor the actio doli for redress. Concentration of the obligation on the object that has not perished in the first case, and extinction of the obligation in the latter were given solutions for the classics.
-optional obligations.
are those in which the debtor is obliged to comply with a specified service while reserving for itself the right of free meeting another. Thus, bound by a conviction for the damages caused by an animal from your property, could free delivery by Naxa deditio animal. It should be noted that the new object does not affect the substance of the obligation, that is, does not fit in but completely in solution obligation. Therefore, if the main object perishes by accident, the obligation is extinguished and the debtor is discharged.
SOURCES OF OBLIGATIONS
sources are called obligations to those facts to which the Roman law attributed effectiveness bring about a mandatory link between two or more people. According
Gayo, the obligations derived from two sources: the contract and crime, but the response cottidianae, comes a tripartite classification of the causes of obligations: obligations arise from the contract or the offense, or by some peculiar law of several species of cases, the doctrine today is inclined to believe that this division is classical and that Cottidianae Res Gayo which are attributed to it. The Roman jurists to refer to the third term, sometimes indicating that the obligation was developing them in a similar way as it unfolded that from a particular contract or crimes. In institutions
Justinian, the tripartite of the sources of obligations became cuatripartición: So from the obligations of a contract or a quasi, or a crime or a tort. Scientifically, the cuatripartición, arguably Justinian, had the single merit to reaffirm once and forever the concept of contract as an agreement of wills productive obligation.
This classification has the merit of pointing definitively what are the main sources of obligations, but that was defective in them do not fall all the facts that may give rise to an obligation, facts that under no circumstances were Justiniano unknown and was listing over his work. CONCLUSION
This classification of sources of obligations became insufficient as the Roman law was perfect. The lawyers, trying to determine the causes of the obligations sanctioned by the law acknowledge that can be bound without contract and crime has occurred, each obligation in Roman law takes a peculiar physiognomy, according to the cause that produced it. So the lawyers do not study the obligations themselves according to their general character, but merely describe the various sources from which they spring.
Normally, when the debtor complies with its obligations, they are extinguished, but the mere compliance with the obligation not dissolved, since this was a kind of constraint that required a separated, in terms reverse employees to be bound. This release is known by the name of contrarius actus. Therefore, for the extinction of the formal obligations be followed a procedure performed to reverse established.
So in the case of a loan held by the old contract nexum, extinction of obligations was achieved by acceptilatio (questions followed by a response), so, the mere payment did not extinguish the obligation; only in the classical age Civil Law recognized the payment as a means of extinguishing obligations.
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Author: Ms. Alicia Vicente Rodríguez
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Date: 01 - Apr - 2009
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