Obligation (law)

As a bond (of Latin obligare 'tether, commit ") is a contractual relationship between two people is referred to Swiss law. The one who owes is referred to as the debtor , the one who is owed is called the creditor . From the perspective of the obligee, the obligation is a claim , from the point of view of the debtor a debt .

In German law, the obligation simply refers to the " debt relationship ", which is why a distinction is made between mandatory and real rights. In Germany, the term “ bond” is the usual term for bonds in securities law for a sum of money ( bearer bonds ).

History and general term

Originally, the term obligatio was still meant literally in Roman law : Anyone who could not pay a debt was so "bound" to his creditor that he was in debt bondage to him until his debts were paid off. Over time, of course, this meaning faded and was reduced to the fact that the obligation can somehow be enforced, i.e. enforced, even if it is no longer so draconian.

The concept of obligation as a technical term originated in ancient Rome. Already long before the birth of Christ, legal scholars examined the legal transactions between persons and developed the concept of the obligation: when someone promises to do something to another, he binds himself to him. While absolute rights (such as property) apply to everyone, an obligation (as a relative right ) only applies to a specific person or group of people. If the debtor promises the creditor the amount of money X, only the creditor can claim this amount X from the debtor. The first distinction between obligatio ex contractu and obligatio ex delicto in the area of contract law was made by Gaius . He introduced the concept of delictum , which had not yet been attested to by the Vorgaians, such as the founder of the law school, Masurius Sabinus .

If there is a relationship between two people in which each person has a claim against the other and these claims are interdependent (for example, in a purchase where one person owes money, the other the goods), there is a so-called synallagmatic contract.

In the earlier legal theory, obligations were divided into the obligationes ex contractu (obligations from a contract) and the obligationes ex delicto ( tort obligations ). The first category included the types of real , verbal , litteral and consensual contracts . The second category included the furtum , which was disfranchisatory , as well as the iniuria and the lex Aquilia .

Situation in today's law

definition

In Switzerland , the main features of the obligation are regulated in the Code of Obligations . Here, “obligation in the narrower sense” or obligation […] is understood to mean the legal relationship between the obligee and the debtor […], by virtue of which the obligee makes a performance, i. H. can demand an act or omission and the debtor is accordingly obliged to provide the service. "In the narrowest sense, a bond is to be understood as a specific security that embodies a loan claim"

Emergence

The headings of the sections of the first title of the OR indicate three reasons by which an obligation can arise:

from contract,
from tort and
from unjust enrichment .

Through teaching and jurisprudence, however, other liability grounds are also assumed that are not (or only hinted at) in the law, such as the so-called culpa in contrahendo (Latin for "liability arising from negligence when concluding a contract") or general trust .

literature

Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 .
Philipp Schmieder : Duo rei. Collective bonds in Roman law (= Freiburg legal-historical treatises. NF Vol. 56). Duncker & Humblot, Berlin 2007, ISBN 978-3-428-12559-3 (also: Freiburg (Breisgau), university, dissertation, 2006/2007).
Ingeborg Schwenzer : Swiss Code of Obligations. General part. 5th, revised edition. Stämpfli, Basel 2009, ISBN 978-3-7272-0938-3 .

Individual evidence

↑ ^a ^b Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 . P. 81.
↑ Gaius 3.88: "Nunc transeamus ad obligationes, quarum summa divisio in duas sepcies diducitur: omnis enim obligatio vel ex contractu nascitur vel ex delicto."
↑ digests 3,3,46,5; 4.7.7.
↑ See Honsell: Römisches Recht, p. 100.
↑ Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 147.
↑ Schwenzer: OR AT, N. 4.01.
↑ Schwenzer: OR AT, N. 4.02.
↑ See Schwenzer: OR AT, N. 47.01 f.
↑ On this in detail Schwenzer: OR AT, § 52.

Web links

Federal law of March 30, 1911 on the amendment to the Swiss Civil Code (Part Five : Code of Obligations ) , accessed on November 15, 2009.

[Honsell-1] Heinrich Honsell : Roman law. 5th, supplemented edition. Springer, Berlin et al. 2001, ISBN 3-540-42455-5 . P. 81.

[2] Gaius 3.88: "Nunc transeamus ad obligationes, quarum summa divisio in duas sepcies diducitur: omnis enim obligatio vel ex contractu nascitur vel ex delicto."

[3] sts 3,3,46,5; 4.7.7.

[4] See Honsell: Römisches Recht, p. 100.

[5] Uwe Wesel : History of the law. From the early forms to the present . 3rd revised and expanded edition. Beck, Munich 2006, ISBN 3-406-47543-4 . Marg. 147.

[6] Schwenzer: OR AT, N. 4.01.

[7] Schwenzer: OR AT, N. 4.02.

[8] See Schwenzer: OR AT, N. 47.01 f.

[9] On this in detail Schwenzer: OR AT, § 52.