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A Historical Introduction to the Law of Obligations

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Professor Okeoghene Odudu is University Senior Lecturer in Law and Co-Director of CELS. His expertise lie in EU and UK competition law. He has recently completed a major research project on the application of competition law to the National Health Service in England - funded by the British Academy - and he is engaged in a long-term project seeking to examine the competition law implications of the 'Open Public Services Agenda'. The striker moved to France in 2010 having been signed by Bordeaux and made his first team debut two years later. He was loaned out to Championnat National side US Orleans for the 2012-13 season and was later loaned out to Chamois Niortais in Ligue 2 and Caen in Ligue 1. Dr Emilija Leinarte is University Assistant Professor. Her expertise lie in International law and European Union Law.

Si quis tutelam vel curam vel negotia vel argentariam vel quid aliud, unde obligatio oritur, certo loci administravit: etsi ibi domicilium non habuit, ibi se debebit defendere et, si non defendat neque ibi domicilium habeat, bona possideri patietur. At 9.05pm, Mr Fencioglu received a phone call from Cardiff air traffic control and was told the N264DB flight “had been lost” around 14 miles off the coast of Guernsey. To understand the nature of obligatio we should begin with the verb form, obligare , and see its etymology and meaning. Its core meaning, already by the time of Plautus, is to bind , tie up or fasten, with its root ligare derived from the Greek λυγόω, with the same sense. Its secondary, abstract meaning of putting a person under a duty , which is found by the end of the Republic, maintains its link with this concrete meaning of binding or tying. In addition, it could refer to the binding of a thing, as where its owner pledged it to another. It is from here that we get, at the latest by the time of Cicero, the noun obligatio . Four centuries ago, in his commentaries on the civil law, Donellus analysed the nature of obligatio in Roman law. Subsequent scholars by the score have continued his work and continue to do so. It would be impossible in a short piece to engage with all of this literature, so the purpose of the present discussion is simply to outline what is known and to locate it within the Roman world. 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 .During his evidence, Mr Smith said he insisted a French mechanic should look over the plane. He added: “I cannot certify an aircraft without looking at it.” While he could not confirm the plane had been looked at, he said he was told by Mr Ibbotson the plane had been seen by a mechanic. Above all, an obligatio might flow from a contract , so much so that it could sometimes be treated as synonymous with contract. This is clearest in Ulpian’s description of the nature of contract as something which stemmed from an agreement:

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. The next division is into four species; for they arise from contract, or as if from contract, or from wrongdoing, or as if from wrongdoing. Let us proceed to obligations. Their basic division is into two species: for every obligation arises either from contract or from delict. 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.

Summary

The Centre for English Legal History is delighted to host a valedictory lecture by David Ibbetson FBA, Regius Professor of Civil Law. A paper on English legal humanism may be, almost by definition, a paper without a subject. If legal humanism is taken in its continental sense described by Douglas Osler, as a concern with the establishment of the true texts of the Justinianic corpus and elsewhere, and their interpretation as such, using philological and historical methods, as part of the study of Antiquity, then we would hardly expect there to be very much in England, certainly not in connection with English law. Even if we take a broader approach to humanism, things are not much better. Anyone who takes the trouble to do a Google search on the phrase “English legal humanism” will, at the time this is being written, get hardly a single hit. While none of us would want to treat Google as a definitive index of the world's knowledge, the paucity of references does indicate that it is something of a non-topic. According to one work on humanism in Tudor England, the study of law, like the study of logic, Latin grammar and Aristotelianism, was transformed by the activity of humanist scholars; but the references are to France and Basel, not to England. So far as the modern literature goes, there is nothing there.

As a noun, obligatio has none of the imbalance of the verb , for it can refer both to the act and to the state of obliging, from both the active and passive standpoint. That said, there is probably a slant towards the passive end: it makes perfect sense to speak of a person being obliged without specifying who it is that is doing or has done the obliging , whereas we cannot so easily speak of the active party to the obligation without saying or implying who it is that is being or has been obliged. Perhaps more to the point, though, the noun carries with it a greater sense of the relationship between two persons than does the verb. It is this that accounts for its function in the institutional structure of Roman law . Noteworthily, although the sources of obligations are given in the Institutes, Gaius gives nothing like a definition of obligatio . We might say that his primary reason for introducing the category of obligations into the institutional framework at this point has nothing to do with obligations themselves, but serves rather to provide a peg on which to hang the discussion of contracts and delicts . David John Ibbetson FBA is a British legal academic. He was Regius Professor of Civil Law at the University of Cambridge from 2000 to 2022, and President of Clare Hall from 2013 to 2020. [1] From 2009 until 2012, he served as the chairman of the Faculty of Law, University of Cambridge. [2] He was General Editor of the Cambridge Law Journal between 2003 and 2009. Professor David Ibbetson FBA is Regius Professor of Civil Law. As a legal historian he has particular expertise in comparative European legal history and co-edited with Professor John Bell the Comparative Studies in the Development of the Law of Torts in Europe (Cambridge University Press).I would like to make clear at no time did I have any reason to believe the aircraft was flight unworthy, I cannot and still don’t believe it necessarily was. He liaised directly with the engineers. During my exchanges he seemed confident and did not express any apprehensions about the aircraft. Obligationes aut ex contractu nascuntur aut ex maleficio aut proprio quodam iure ex variis causarum figuris.

Mr Goudie said: “He’s been with you less than two weeks, why when Fay Keely asked you not to use him again did you not give her the full facts? Moreover, it is only an intimate relationship, not an equivalence . The obligatio gives rise to the actio, the actio is grounded on the obligatio. There is, therefore, a separation in time between the two; the purpose of the actio is to obtain performance of the obligatio and thereby to dissolve it . This is an important aspect of the relationship between the two ideas. While the obligatio exists, as well as the legal relationship between the parties there is a social relationship of dominance and subordination . The inevitable period of time between the creation of the obligatio and its dissolution (whether it be by actio or by performance) marks the continuance of this social relationship . The obligatio might continue indefinitely, it might never be dissolved, thereby stretching the duration of the power relationship . It may even be the case that the debtor might sometimes be expected not to perform, since it might not be appropriate for the person in the subordinate position to determine when the relationship should end .We are delighted to announce that Professor Helen Scott will join the Faculty of Law in October 2022 as the Regius Professor of Civil Law. The Regius Professorship of Civil Law was founded by Henry VIII in 1540 and was the University of Cambridge’s first Chair in Law. The Chair is currently held by Professor David Ibbetson, who will retire in September 2022; other recent holders of the Chair include Professor Peter Stein and Professor David Johnston. Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei, secundum nostrae civitatis iura. As well, since it could be conceived of as a thing , an obligatio could be split into parts or divided up . It followed therefore that part of an obligatio could be released, leaving the remainder of the obligatio intact. It was easy to deal with co-heirs , since it could be said that an obligatio owed by or to the testator could be divided between them, each having or being liable for a share. Exactly the same applied to co-ownership ; when a promise was made to a co-owned slave , for example, the obligatio could be divided up among the co-owners. It is at this point that we can see the flexibility that is achieved by the use of the noun rather than the verb . No doubt it would have been possible to have reached the same results solely by using the verb, but it would hardly have been linguistically economical to do so. The plane in which Sala and Ibbotson travelled was a Piper PA-46 310P Malibu single engine aircraft, registered to the United States under number N264DB. Although the obligatio was at its core a relationship between two parties, as a noun it was reified so that it was seen as an asset in the hands of the beneficiary. In his Institutes, Gaius places obligationes in his list of incorporeal things, alongside inheritances, usufructs and servitudes ; something that is repeated by Justinian. An obligatio therefore had a duration; it could be said to be born and to be extinguished or brought to an end . It could endure or remain, or it could be perpetuated. If a transaction was undone so that there was restitutio in integrum, a former obligatio could be restored. When a novation occurred it could be said that the obligatio had been changed, and as a thing it could be sold or transferred. Indeed, so proprietary was the obligatio that both Ulpian and Julian say that it can be made the subject of a condictio ; where a promise had been made without a causa the promisor could bring a condictio to reclaim the obligatio itself, not the sum of money that had been promised.

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