The Influence Of Roman Law On European Countries

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Part A

In basic terms, as most laypersons would understand it, an obligation is a duty or responsibility to complete an action or task. There are many different types of obligations, some of which are not enforceable by law. The meaning of obligation can be changed over time or depending on the situation. The law of obligations is often said to have its origins in Roman law, defined in the institutes of Justinian as “a legal bond (vinculum iuris) whereby we are constrained to do something according to the law of our state”. This is suggested to be the starting point for all current definitions as the law of obligations is still very similar to the law the Romans had. One modern definition of obligations is a legal tie (or bond) between two people. They contain various conditions, which if not met result in penalties usually in the form of compensation. There are two main divisions in civil law; both contain different types of obligations.

Contract law is more focused on the bonds between the two parties. The obligations that may be found in this area of the law are mostly physical contracts. One modern example is an employment contract. In Roman law, categories included sections such as sale and insurance, which were broad areas that covered a lot of different contracts. However, the Romans did not form a general theory of contracts. In modern law, the main obligation seen in contracts is to fulfil your duties in relation to the contract. Similarly, in Roman law, parties were obligated to adhere to the contracts formed.

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Tort law (known as delict in Roman law) is more concerned with rectifying the damage caused by an individual. Examples of tort in the modern-day include trespass of property, person and goods as well as types of negligence. Delict is a civil wrong that is very similar to tort. In Roman law, there were 3 main types of delict; theft and robbery (furtum), wrongful damage to property and insulting behaviour (contumelia). In the modern law of tort, the obligation is usually to prevent harm and in instances where you are at fault to compensate for the harm that you have caused. In Roman delict, the main obligation was similar, in order to stop retaliation, if you caused a wrong you would be required to compensate.

An enforceable obligation is one that is legally binding, most clearly shown in contracts. There are six requirements that make a contract enforceable: offer, acceptance, competent parties’ consideration, legally binding subject matter and mutual obligations. In a contract, there are usually mutual duties that the parties are bound to. Tort also has enforceable obligations, however, it mostly arises from a breach of a non-contractual duty not to cause harm to another’s person or property. There is usually an obligation to provide compensatory damages.

An unenforceable obligation is something that cannot be legally imposed in a court. These could be moral obligations such as familial duties (excluding the parent-child duties) but they can also be valid contractual duties that cannot be enforced by a court. There are eight things that make a contract unenforceable including duress and impossibility. Although contracts may be valid, the obligations of the parties set out in the contract might be unenforceable. Arguably, there are no unenforceable tortious obligations. The only conceivable ‘unenforceable’ obligation would be if there is no damage caused because there is, subsequently, no breach of obligation and therefore nothing to enforce.

Part B

Published on the Guardian website, on the 13th of June 2018, was a contract case relating to the company Pimlico Plumbers. Mr Gary Smith has sued his previous employers for unfair dismissal, unlawful deduction of wages and holiday pay as well as disability discrimination. There were several appeals by Pimlico and the case reached the Supreme Court who again sided with Mr Smith. They ruled he was a ‘worker’ with the same rights as an employee. There are three main pieces of the legislation cited in the ruling of this case. The first is the Working Time Regulations which defines a “worker” as someone who entered a contract with an employer as Mr Smith had with Pimlico. The second is the Equality Act which defines employment as “under a contract of employment, a contract of apprenticeship or a contract personally to do work”. Lastly is the Employment Rights Act, which more widely covers types of employment. Mr Smith’s contract was not explicitly a contract of employment but covered by the legalisation.

This is an example of a modern breach of contract because Pimlico had an obligation as an employer to adhere to the agreement between themselves and Mr Smith. This is like the Roman law of locatio conductio which is the general contract of hire. More specifically, locatio conductio operarum and operis cover the freeman renting his labour to another, which was one of the most common types of contract in Roman law (after sale).

The significance of the Roman contract of hire is still prevalent today. The Romans only had a broad contract of hire which included many different types of hire, such as the lease of movable and immovable goods. In the UK we have legislation to govern the employer’s responsibilities to their employees, for example, the employment rights act and the employment regulations act. One crucial difference between Roman and modern law is that there was not ‘employment’ as such. Workers were hired rather than employed. It would suggest they were more like self-employed contractors. It was argued that Mr Smith was a self-employed contractor and therefore Pimlico had fewer obligations to him, a similarity between Roman hire and the current case.

On the Law Society Gazette website, an article was published on the 3rd of July 2018. It was a tort case where two homeowners were suing network rail on the grounds of private nuisance. The rail company appealed to the court of appeal. Stephen Williams and Robin Waistell had brought about the claim on the basis that Japanese knotweed, which had spread onto their land, depreciated the value and interfered with the quiet enjoyment of their properties. Japanese knotweed is known to be difficult to eradicate, spread easily and is one of the world’s most invasive species.

Although there are no statues on the issue brought forth in the case, there are many precedents that deal with these issues. In the current case Hunter v Canary Wharf Ltd , Jan de Nul (UK) Ltd V Axa Royal Belge SA, Blue Circle Industries PLC v Ministry of Defence and Cambridge Water Co Ltd V Eastern Countries Leather PLC were all used for their significant authority on the areas addressed. There are some principles that arise. Private nuisance goes against property rights which can include interfering with the value of a property. Encroachment is an example of another property right. Nuisance might be an omission that would apply in the case of the railway. The main principle is that of reasonableness among neighbours.

No Roman law matches neatly with the quiet enjoyment of one’s property. The closest would be the wrongful damage of property (damnum iniuria datum) which comes from the ‘Lex Aquila’ . Roman delict was more concerned with damage; they wanted to stop retaliation, which was probably more likely to occur from damaged goods. The Romans had several categories of damage such as accidental (damnum fatale) and damnum infectum which was threats to a property due to a defect in the neighbouring property. The latter more closely resembles the present case as it could be said the spreading of the Japanese knotweed was a ‘defect’ of the rail companies’ property that threatened the properties of Mr Williams and Mr Waistell.

Part C

Evidence would suggest that studying the historical origins of the law of obligations, namely Roman law, is not useful in and doesn’t correspond with modern society. The cultural norms and values have evolved and with the development of modern technology, it can be argued that Roman law is no longer relevant. We could suggest that the principles could be extrapolated, for example; chariots could be replaced with cars, but this could lead to confusion.

However, it is suggested there is more evidence to imply that it is useful to study historical laws because they form the basis of many legal ideas that are in use today. It is reasoned that a good knowledge of Roman law is key if students are properly to understand the law of obligations as a generic category. Most European countries like France and Germany are heavily influenced by Roman law. Even in the UK, it is easy to trace modern law back to the Roman equivalent (as demonstrated in Part B). Therefore, it is argued that it is useful to study Roman law because it develops a clear and detailed understanding of the subject.

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