§ 2. Obligation.

Nature of Obligation is a power of control, exerciseable by one person

sav obi °" ^^®^ another, with reference to future and specified acts or

ch. I. ss. 2-4. forbearances. The characteristics of Obligation would seem

to be these : —

I. Two I. There must be two persons, or groups of persons, one or

or both hi^^ ^^ ^^ whom is invested with a controlling power which he

vested with {q capable of exercisinff over the acts of iiie other, while that

control over "^ ° , . <. i #.

actions of other SO far suffers a dimiinution of his ordmary freedom of

^^' action. These persons or groups are thus bound to one

another by this peculiar and special relation ; they are con-

nected by what the Boman lawyers called vincuhmi juris,

a legal tie.

It is obvious that such a relation necessitates two parties ;

a man cannot be under an obligation to himself, nor even tb

himself in conjunction with others. Where a man borrowed

money from a fund in which he and others were jointly in-

terested, and covenanted to repay the money ;to the joint

§2. Place of contract in jurisprudence. 5

account^ it was held that he could not be sued upon his

covenant. ' The covenant to my mind is senseless/ said

Pollock, C. !B. 'I do not know what is meant in point of Fauikner v.

' * Lowe, 2 Ej{.

law by a man paying himself/ ^^

2. The second feature of aa Obligation is that it relates 2. The

to certain definite a<sts. The freedom of the person bound is lates to

not generally curtailed, but is limited in some special matters ^^efimte

and with reference to some particular act, or series, or class

of acts. To use Savign/s illustration, Obligation stands in

a relation to individual freedom similar to that in which

servitude stands to dominiwm or the indefinite rights of

ownership. For instance, I am owner of a field ; my pro-

prietary rights are general and indefinite : my neighbour has

a right of way aver my field ; ' my rights are to that extent

curtailed by his, but his rights are very definite and special.

So with Obligation. My individual freedom is generally un-

limited and indefinite. As with my field so with myself : I

may do what I like with it so long as I do not infringe the

rights of others. But if I enter into a contract to do a work

for il by a certain time and for a certain reward, my general

freedom of a<;tion is abridged by the special right of A to

the performance by me of the stipulated work ; and A again

is similarly obliged to receive the work, and to pay the

reward.

3. The thing to be done must be such as possesses, or is 3- And these

reducible to, a pecuniary value. This is needed in order to ducible to a

distinguish legal from moral and social relations. If a man P®c""i^''y

saves me from drowning I am under a moral obligation

to him, but neither my life nor my gratitude can be esti-

mated at a money value. If two friends agree to pursue

certain studies together, it is again impossible to estimate

in money the advantage which they. may derive from their

mutual employment, or the disappointment which one may

experience if the other should break his promise.

These then are the principal features of Obligation. It

6 INTRODUCTION. Part I.

gives to one man a control over the actions of another, defi-

nite in character^ and capable of being reduced to a pecuniary

value.

Distinguish But before discussing the various kinds of Obligation it

of obliga- ^^ ^^^^ ^ ^^^ ^^ double meaning in which the term is used

tion. by Austin and Bentliam, and the desirability of keeping

clearly before the mind the sense in which it is most con-

venient that it should be employed for our present pur-

poses.

(i) General Obligation is indiscriminately used (i) as meaning any

. "'^* . . Duty imposed by law, {2) as meaning that special Right and

tie. Duty which create a vtncid%tm juris between two persons

or groups of persons.

It is in the second sense only that the word should be

employed. In its first sense it merely means the general

duty which the law imposes, to respect such rights as the

law sanctions. This duty is not an obligation, for no two

definite persons or groups are bound together by it. I have

a right to my good name, a right in rem, against all persons

subject to the laws which sanction my right. But I am not

thereby bound in any special manner to the individuals con-

stituting the political society in which I live. I cannot be

bound to a whole community. If X libels me, my right is

broken by a definite individual; an obligation at once

springs up and binds us to one another ; a vinculum jv/ris

encircles us, and is not loosed till my injured right is made

good. It will very much assist the consideration of Contract

if we keep always before us this conception of a legal tie

binding the parties to certain definite acts, and binding them,

once it is truly formed, imtil the obligation is discharged.

Kinds of Having thus obtained a general idea of Obligation, we

obigation. ^^^ ^^^ ^^ distinguish the various modes in which Obli-

ga'tion originates.

I. Ex con- I. Obligation may originate in Agreement. Here we

find that form of agreement which constitutes a contract ; a

tractu.

§ 2. PLACE OF CONTRACT IN JURISPRUDENCE. ^

voluntary consent to the creation of an Obligation by the

parties who are to be bound. The agreemeut, being such

as we have described it, has for its object the creation of

an Obligation, a legal tie by which the parties to the agree-

ment are bound to one another in respect of some future

acts or forbearances.

2. Obligation may arise from Delict. This occurs where 2. Ex de-

a right has been violated and the wrong-doer is bound to the

injured person to make good the consequences of his breach

of Duty. Such an obligation is not created by the free-will

of the parties, but springs up immediately upon the occur-

rence of the wrongful act or omission.

3. Obligation may arise from Quasi Contract, a convenient 3* Quasi

term for a multifarious class of legal relations possessing this

common feature, that one of two parties has obtained some

pecuniary advantage, to which he is not entitled, at the ex-

pense of the other. The process by which this advantage

has been gained is, roughly speaking, that A has made a

payment which X ought to have made, or that X has re-

ceived money which A ought to have received. The modes

in which this relation arises in English law will be dealt

with briefly at a later stage. It is enough to note here that

the law imposes upon the parties the contractual relation,

assuming a binding promise by X to make good to A the

advantage which he has gained at ii's expense.

4. Again, Obligation may arise from a breach of Contract. 4- On

While A is under promise to X, X has a right against A contract.

to the performance of his promise when performance be-

comes due, and to the maintenance up to that time of the

contractual relation. But if A breaks his promise, the right

of JT to the performance has been violated, the contract is

discharged, And a new obligation springs up, a right of

Action, exactly similar in kind to that which arises upon

a delict or breach of a Duty.

5. The judgment of a Court of competent jurisdiction, 5. Judg-

ment.

8 INTBODUCTION. Part I.

ordering something to be done or forborne by one of two

parties towards the other, is also a source of Obligation.

It is an Obligation of this character which is unfortunately

styled a * Contract of Record ' in English law. Unfortu-

nately, because the Obligation does not spring directly from

Agreement, but is imposed on the parties ab extra.

6. Miscel- 6. Lastly, there is a class of Obligation which it is some-

times hard to distinguish from Contract. A trustee and

his cestui que trust, a husband and wife, an executor and

legatee have rights one against the other which are, strictly

speaking, obligations or jura in joersonam. The real dis-

tinction between these cases and the contractual obligation

is twofold. In the case of the trustee and the executor,

the acceptance of the obligation, though voluntary on the

part of him on whom the bulk of its duties fall, need not,

or cannot,, be the result of an agreement between the parties

bound. Even where the obligation springs from Agreement,

its creation is not the direct object of the transaction.

The object of the creation of a trust is to transfer rights

m rem as well as to create rights in personam. The ol^ect

of marriage is to effect a change of status. The object of

becoming an jexecutor or administrator is to acquire in great

measure the legal existence of the deceased, and not merely

obligations towards legatees. Obligations of this kind are

merely incidental to a creation or transfer of a group of

rights and duties. The creation of an obligation is the one

object which the parties have in view when they enter into

that form of Agreement which is called Contract.

Attempted We may now attempt to define Contract, or the result of

ofcomrSct. this concurrence of Agreement and Obligation.

Contract is an Agreement enforceable at law, made be-

tween two or more persons, by which rights are acquired by

one or both to acts or forbearances on the part of the other.

And it may be as well to add that there are agreements,

such as marriage, the creation of a trust, a conveyance of

J