LAW OF OBLIGATIONS Flashcards
What is an obligation?
A thing between a debtor and creditor
What are corporeal things?
Tangible things such as land and slaves
What are incorporeal things?
Intangible things that merely exist in law such as inheritance
What claims are in the law of obligations?
Claims in personam
What is included in the law of obligations?
Contract, Quasi Contract, Delict and Quasi Delict
What are the types of real contracts?
Loan for consumption (mutuum), Loan for use (commodatum), Deposit and Pledge
What must we bear in mind with real contracts?
Capacity, formalities versus no formalities, unilateral vs bilateral, when does the contract exist? and what rights does in confer?
Are real contracts formal or informal?
Informal
What is loan for consumption (mutuum)
Unilateral contract where debtor is obliged to pay the creditor back an equivalent sum. Comes into existence once money had been handed over. Restricted to fungibles
What is loan for use? (commodatum)
Bilateral contract is when a debtor is obliged to return the non- fungible.
What does stricti iuris mean?
Strict law
What does bona fide mean?
Good faith laws
What obligations does the borrower have in commodatum?
Only use property for the purposes specified in the contract.
Obliged to return the thing at time specified in the contract.
Had to return the thing in the same condition it was received in
What is dolus?
Deliberate wrongdoing
What is culpa?
Fault or negligence
What is culpa lata?
Gross negligence
What is culpa Levi?
slight negligence
What is custodia?
strict liability
What standards of care apply to commodatum?
Before Justinian it was custodia and under Justinian it is now culpa Levi
Why does a high standard of care apply to commodatum/
Based on the fact that only one party benefitted from the contract
What obligations does the lender have under commodatum?
Allow borrower the use for the agreed period of time
To indemnify the borrower for extraordinary expenses
To compensate borrower if a defect in the thing caused them loss
What is deposit?
Consists of depositing something in someone else hands
No transfer or ownership or possession
What obligations did the depositee have in deposit?
To keep the thing
To return thing in same condition
To not use the thing
What obligations does the depositer have in deposit?
To compensate depositee for expenses and losses associated with deposit
What is the standard of care for deposit?
Low standard of care - dolus or culpa lata
Why is their a lighter standard of care for deposit?
Because the depositer is benefitting from the contract
What is pledge?
Consists of placing an object into someone else hands in security of a debt
What are the pledgees obligations under pledge?
Restore the thing pledged once debt paid off
If pledged thing was sold the surplus goes back to debtor
Pledgee cannot use the thing pledged
What obligations did the pledger have under pledge?
Pay expenses incurred
Compensate the pledgee for any damages
What is the standard of care for pledge?
culpa Levis
Why are real contracts not as important?
Usually gratuitous contracts between friends and also no interest could be charged
Why do we have formalities?
To prevent fraud
To make people think twice - warning
Labelling function
What is stipulation?
A verbal contract concluded by means of question and answer
A promise
How did stipulation become much more flexible?
recognised there was more than one way of saying I promise
What is personal security?
When one person is liable for a debt and an additional person becomes liable
What is a suretyship relationship?
Relationship between a creditor, principle debtor and guarantor
What is the right of relief?
Allows the surety to obtain compensation from principle debtor if surety had been sued by creditor. Surety can now pursue principle debtor
What is the right of pro rata relief?
Surety is entitled to this and can seek 50% of what he paid
What is benefit of division?
if there were multiple sureties and one was sued the surety could restrict what he paid to his pro rata share of the debt
What is correality?
Traditionally sueing one party to a suretyship relationship automatically released all the other partied. This rule was removed
What are consensual contracts?
Contracts which required nothing but agreement and had no formalities
What are the types of consensual contracts?
Sale, Hire, Partnership and Mandate
What is sale?
When one promises to transfer an item and the other promises to pay a price
What are the key elements of sale?
- A thing
- A price
- An agreement
Do the objects have to be certain in sale?
Yes it has to be very specific in roman law
Does the object have to exist in sale?
No, it does not have to exist at the time of the sale as contract comes into existence immediently
What is a sale of an expected thing?
Seller bears risk
What is the sale of an expectation?
Buyer bears risk
What are the problems of sale?
Cant sell something you don’t own
Does the object have the capability of being sold? - sacred grounds and free people
What is sale and barter?
Sale is giving money barter is trading
Is it a sale if the buyer offers both money and a thing?
Yes
What are the characteristics of price?
Had to be certain
No need for an exact figure as there was an agreement on the means of determining that figure
Price could be determined by a named third party
Price had to be genuine
What are the two issues arising from agreement?
Conditional agreements and Error - in some cases error can make contracts invalid
What are the key types of error?
Error of the thing
Error as to the price
Error as to the transaction
What is error of the essential substance of an object?
When we agree on the thing but disagree on the substance or quality of the thing
Whats the difference between an error of substance and an error of quality?
An error of substance is one that reduces the contract and an error of quality was not something that reduces the contract
What is invalidity of sale?
Things that prevent a contract from becoming into existence
What is a breach of sale?
Breach is when a valid contract
What is the sale life cycle?
Conclusion of contract, Perfection of contract, Performance
When does the risk pass from seller to buyer?
Once the contract has been agreed. As soon as risk is passed buyer bears the risk and has to pay
Why does the buyer gain the risk?
As he is also gaining the fruits arising and also the buyer takes the benefit of an increase in the properties value.
What are the duties of the seller?
Deliver object and give vacant possession
Take care of object until delivery
To guarantee against eviction
To guarantee against latent effects
