The Original Roman Law Of Obligations

Part A.

One’s explanation of what an “obligation” is might differ depending on background and education. Through the first part of this essay I’ll attempt to give a definition of this term in the context of the law, and in doing so giving the historical background and a summary of how this term has changed and developed. I shall also investigate both enforceable and unenforceable obligations with regards to both contract and tortious fields.

The Law of Obligation comes underneath Civil Law. They are a set of rules that commands and controls the rights and duties which exist between two sets of individuals or parties. But to be more precise an obligation is a legal bond, or a ‘Vinculum Iuris’ to give it a Latin term. An obligation forces the obligor to perform whatever the contract stated he would do and so the oblige therefore has a right to demand performance or service from with whom he has created the contract. To quote Professor Andrew Tettenborn “Obligations suggests duty. Something someone has to do – or not do – which a court may tell him to do …failing to do so is wrong.” In other words obligations, and more so the Law of Obligations brings legal certainty to someone who enters a binding agreement with another person that the contract will be seen through correctly otherwise legal action can be taken.

These principles are still very similar to those of the Romans who created the theory of obligations in law back in 160 AD with the emperor Gaius Caesar’s textbook setting straight the rights of individuals whilst reaching agreements and contracts. One of the biggest contributions of Roman Law to the English Law of obligations is the various groupings within the law of obligations. They were split into delict, contract, quasi-contract and quasi-delict. Also, the bare necessities of a contract in both Roman Law and modern law today are very similar which are an agreement about the thing sold and about the price, only then the sale is “perfecta”. These conditions might seem awfully obvious for us today, but for the Romans to put these down on paper was a big step at the time. A significant contribution by Roman Law into the English system happened in 1852 with the abolition of the writs. Left with no real structure, the common law used categories taken from Roman Law.

Similarities can be found on the delict side of the law as well. The major delicts which existed in Roman Law were wrongful damage to property, theft and robbery, and insulting behaviour which are again still major factors in the modern world of tort law.

But not all obligations are enforceable in a court of law, these are called Unenforceable obligations. These are more moral obligations such as a duty to look after the environment or to be nice to people. Even though we expect these sorts of things from most people we cannot take legal action against someone if they do not deliver these obligations. On the other hand, if an enforceable obligation is not met we can then take legal action in a court of law. This is true in both Contract Law and the Law of Tort. For example, if a homeowner and a builder reach an agreement about o roofing job and the job is not finished to the precise requirement in the contract, the builder has not fulfilled his obligations and therefore the homeowner can take legal action because it was an enforceable obligation. One similar and very famous example of this is the case of Carlill v Carbolic Smoke Ball Co. Here the company promised £100 to anybody who reward to any person who contracted influenza after having used one of the balls in a specified manner for a specified period But when a woman did get the disease after using the medicine they refused to payout. In the court of Appeal, the judges refused the company’s argument because all the needed elements of a contract had been met and therefore they should keep to the promise they made.

This is the same in tort Law as well. Another very famous case which is an example of an enforceable obligation being broken is Donoghue v Stevenson where a woman found a dead snail in a bottle of ginger beer her friend had purchased from a cafe This was the first major case where the Judge, Lord Atkin, found that a man had to “take reasonable care to avoid acts or omissions which he can foresee would be likely to injure his neighbour” this case paved the way to other cases and brought forward a feeling that company’s had a duty to ensure the safety of their audience because it was the first to gain general acceptance.

Part B

It’s hard to believe that there are still similarities between the original Roman Law of Obligations and the modern version we have today. In the second part of my essay, I will pick two recent news stories relevant to the Law of Obligations and try to identify the differences and resemblances present from the Roman Law of Obligations.

Why has Eleven Sports breached the UK Saturday afternoon live football blackout? That’s the headline of my Contract story about Eleven Sport, a sports Broadcasting Company, which has broken UEFA rules about broadcasting football during the peak time for lives in a country by broadcasting both Serie A and La Liga football to viewers on Saturday 29th of October 2018. But Eleven Sport is not a Football Association so the English FA can only take legal action against La Liga and the Spanish FA for allowing Eleven Sports to live stream the game on land. La Liga has therefore breached the contract it had with all UEFA members.

One of the first similarities in this example and with the old Roman Contract Law is in the contract itself. Both football associations have reached an agreement like what was essential in a Roman time when an agreement about the thing sold and the price was needed for the sale be “perfecta”. Another similarity is the exact thing in the contract which is football matches. At the time of the agreement, these things are “future things” and this has a striking similarity with one of the conditions of a Roman contract which is a “future thing”. A big difference is a field in which the story is based on. Technology was not such a thing at the time and the lawmakers were much more used to dealing with cases about the sales of slaves and such.

The story I chose regarding the Law of Tort is about the supermarket company Morrisons which has lost its challenge to a High Court ruling that it is liable for a data breach that saw thousands of its employees’ details posted online. It came after an employee, Andrew Skelton, stole the details of around 100,000 0f their staff and posted them online and even sent them to newspapers. The employee’s case is based on the fact that Morrisons did not do enough to protect their personal data from being misused under the Data Protection Act 1998, and therefore they are seeking compensation.

In the roman Law of Delicts(tort) there were three major delicts considered to be the most serious to commit. One of these was Insulting Behaviour. In my case, Morrisons’ failure to protect their employees’ details has led to an individual being able to damage their reputation be insulting behaviour. Another similarity between my case is with the elements of Aquilian Liability because the ‘defendant wrongfully caused loss’ by their inability to protect their staff’s data.

A huge difference in my story again is the element of technology. Another element is back then there wasn’t t such a thing as data and data theft and therefore this sort of case wouldn’t of have existed.

Part C

Many students are shocked when they realize we must study the historical context of the Roman Law of Obligations. I will try to offer my opinion on why this is a good thing and how it benefits us as students with our further study’s.

One advantage of studying roman Law is the fact that there are still some similarities between both sets of law even though one is hundreds of years older than the other. Another advantage is the fact that it can provide an invaluable grounding for studying the complex English system , the very formality of the Roman system is just the thing to prepare an unexperienced law student for the orderly chaos that is the English Law System.

But Roman Law doesn’t only have similarities with the English system, but with almost every legal system in Europe and even further afield. “Studying Roman law is a passport to the appreciation of continental legal systems” the words of Professor Andrew Borkowski . This should especially help us law student in the European Law module, and with Brexit in full steam, maybe in would not be such a bad idea to have a better understanding of the legal system of our divorcees to be?