The Concept of Obligation | Jurisprudence - CLAT PG PDF Download

The Law of Obligations

Obligation in its popular sense is merely a synonym for duty. Its legal sense, derived from Roman law, differs from this in several respects. In the first place, obligations are merely one class of duties, namely those which are the correlatives of rights in personam. An obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals. 
It includes, for example, the duty to pay a debt, to perform a contract, or to pay damages for a tort, but not the duty to refrain from interference with the person, property, or reputation of others. Secondly, the term obligation is in law the name not merely of the duty, but also of the correlative right. It denotes the legal relation or vinculum juris in its entirety, including the right of the one party, no less than the liability of the other. Looked at from the point of view of the person entitled, an obligation is a right; looked at from the point of view of the person bound, it is a duty. An obligation, therefore, may be defined as a proprietary right in personam or a duty which corresponds to such a right.

Sources of Obligation

Classed in respect of their sources or modes of origin, the obligations recognised by English law are divisible into the following four classes:

• Contractual
• Delictal
• Quasi-contractual
• Innominate

Obligations arising out of a contract

The first and most important class of obligations consists of those which are created by contract. A contract is that kind of agreement which creates rights in personam between the parties to it. Rights in personam are the most numerous and important kind, and of those which are not obligations comparatively few have their source in the agreement of the parties. The law of contract, therefore, is almost wholly comprised within the law of obligations, and for the practical purposes of legal classification it may be placed there with sufficient accuracy. The coincidence, indeed, is not logically complete: a promise of marriage, for example, being a contract, which falls within the law of status, and not within that of obligations. Neglecting, however, this small class of personal contracts, the general theory of contract is simply a combination of the general theory of agreement with that of obligation.

Obligations arising from torts

The second class of obligations consists of those which may be termed delictal, or in the language of Roman law obligationes ex delicto. By an obligation of this kind is meant the duty of making pecuniary satisfaction for that species of wrong which is known in English law as a tort. Etymologically this term is merely the French equivalent of the English wrong tort (tortum), being that which is twisted, crooked, or wrong; just as right (rectum) is that which is straight.

• A tort may be defined as a civil wrong, for which the remedy is an action for damages, and which is not solely the breach of a contract or the breach of a trust or other merely equitable obligation.
• This definition contains four essential elements, there being four kinds of wrongs excluded by it from the sphere of tort:
• A tort is a civil wrong; crimes are wrongs, but are not in themselves torts, though there is nothing to prevent the same act from belonging to both these classes at once.
• Even a civil wrong is not a tort unless the appropriate remedy for it is an action for damages. There are several other forms of civil remedy besides this; for example, injunctions, specific restitution of property, and the payment of liquidated sums of money by way of penalty or otherwise. Any civil injury which gives rise exclusively to one of these other forms of remedy stands outside the class of torts.
• No civil wrong is a tort if it is exclusively the breach of a contract. The law of contracts stands by itself, as a separate department of our legal system, over against the law of torts.
• The fourth and last class of wrongs which are not torts consists of breaches of trusts or other equitable obligations. The original reason for their exclusion and separate classification is the historical fact, that the law of trusts and equitable obligations originated and developed in the Court of Chancery and was wholly unknown to those courts of common law in which the law of torts grew up.

Obligations arising from Quasi-Contract

Both in Roman and in English law there are certain obligations which are not in truth contractual, but which the law treats as if they were. They are contractual in law, but not in fact, being the subject-matter of a fictitious extension of the sphere of contract to cover obligations which do not in reality fall within it. The Romans called them obligationes quasi ex contractu. English lawyers call them quasi-contracts or implied contracts, or often enough contracts simply and without qualification. "Implied contracts" says Blackstone, are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform.

• From a quasi-contract, or contract implied in law, we must carefully distinguish a contract implied in fact. The latter is a true contract, though its existence is only inferred from the conduct of the parties, instead of being expressed. Thus, when I enter an omnibus, I impliedly, yet agree to pay the usual fare. A contract implied in law, on the contrary, is merely fictitious, for the parties to it have not agreed at all, either expressly or tacitly.
• In what cases, then, does the law recognise this fiction of quasi-contract? What classes of obligations are regarded as contractual in law, though they are not so in fact? To this question it is not possible to give any complete answer.
• In the first place we may say in general, that in the theory of the common law all debts are deemed to be contractual in origin. A debt is an obligation to pay a liquidated sum of money, as opposed to an obligation to pay an unliquidated amount, and as opposed also to all non-pecuniary obligations. Most debts are obligationes ex contractu in truth and in fact, but there are many which have a different source. A judgment creates a debt which is non-contractual; so also does the receipt of money paid by mistake or obtained by fraud. Nevertheless, in the eye of the common law they all fall within the sphere of contract; for the law conclusively presumes that every person who owes a debt has promised to pay it.
• Secondly, the second class of quasi-contracts includes all those cases in which a person injured by a tort is allowed by the law to waive the tort and sue in contract instead. There are certain obligations which are in truth delictal, and not contractual, but which may at the option of the plaintiff be treated as contractual, if he so pleases. Thus, if one wrongfully takes away my goods and sells them, he is guilty of the tort known as trespass, and his obligation to pay damages for the loss suffered by me is in reality delictal. Nevertheless, I may, if I think it to my interest, waive the tort, and sue him on a fictitious contract, demanding from him the payment of the money so received by him as having rightly sold the goods as my agent, and therefore as being indebted to me in respect of the price received by him; and he will not be permitted to plead his own wrongdoing in bar of any such claim. So, if a man obtains money from me by fraudulent misrepresentation, I may sue him either in tort for damages for the deceit, or on a fictitious contract for the return of the money.

Innominate

Contractual, delictal, or quasi-contractual, is not exhaustive, for it is based on no logical scheme of division but proceeds by simple enumeration only. Consequently, it is necessary to recognise a final and residuary class which we may term innominate, as having no comprehensive and distinctive title. A Included in this class are the obligations of trustees towards their beneficiaries, a species, indeed, which would be sufficiently important and distinct to be classed separately as co-ordinate with the others which have been named, were it not for the fact that trusts are more appropriately treated in another branch of the law, namely in that of property.

The Law of Procedure

Although the distinction between substantive law and procedure is sharply drawn in theory, there are many rules of procedure which in their practical operation are wholly or substantially equivalent to rules of substantive law. In such cases the difference between these two branches of the law is one of form rather than of substance. A rule belonging to one department may by a change of form pass over into the other without materially affecting the practical issue. In legal history such transitions are frequent, and in legal theory they are not without interest and importance. Of these equivalent procedural and substantive principles there are at least three classes sufficiently important to understand:

(i)

An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence that a contract can be proved only by a writing corresponds to a rule of substantive law that a contract is void unless reduced to writing. In the former case the writing is the exclusive evidence of title; in the latter case it is part of the title itself. In the former case the right exists but is imperfect, failing in its remedy through defect of proof. In the latter case it fails to come into existence at all. But for most purposes this distinction is one of form rather than of substance.

(ii)

A conclusive evidential fact is equivalent to, and tends to take the place of, the fact proved by it. All conclusive presumptions pertain in form to procedure, but in effect to the substantive law. That a child under the age of seven years is incapable of criminal intention is a rule of evidence but differs only in form from the substantive rule that no child under that age is punishable for a crime. That the acts of a servant done about his master's business are done with his master's authority is a conclusive presumption of law and pertains to procedure; but it is the forerunner and equivalent of our modern substantive law of employer's liability. A bond (that is to say, an admission of indebtedness under seal) was originally operative as being conclusive proof of the existence of the debt so acknowledged; but it is now itself creative of a debt; for it has passed from the domain of procedure into that of substantive law.

(iii)

The limitation of actions is the procedural equivalent of the prescription of rights. The former is the operation of time in severing the bond between right and remedy; the latter is the operation of time in destroying the right. The former leaves an imperfect right subsisting; the latter leaves no right at all. But save in this respect their practical effect is the same, although their form is different.