OBLIGATIO. In Roman Law. A legal bond which obliges us to the perform ance of something in accordance with the law of the land. Ortolan, Inst. 2, 1179.
It corresponded nearly to our word contract. Justinian says, " Obligatio est finis vinculum, quo necessitate adstringimur alicujus solvendce rei, secundum noserce civitatis jura." Pr. J. 3.13.
The Romans considered that obligations derived their validity solely from positive law. At first the only ones recognized were those established in special cases in accordance with the forms pre scribed by the strict jue (Anis. In the course of time, however, tlie prastorian jurisdiction, in miti gation of the primitive rigor of the law, introduced new utodes of contracting obligations and provided the means of enforcing tbem : hence the twofold division made by Justinian of obligationee eiviles, and obligationee prietorize. Inst. 1. 3. 13. But there was a third class, the obligationes naturalea, which derived their validity from the law of nature and nations, or the natural reason of mankind. These had not the binding force of the other classes, not being capable of enforcement by action, and are, therefore, not noticed by Justinian in his classifica tion ; but they had, nevertheless, a certain efficacy even in the civil law : for instance, though a debt founded upon a natural obligation could not be recovered by an action, yet if it was voluntarily paid by the debtor he could not reoover it back, as he might do in thc case of money paid by mistake, etc. where no natural obligation existed. L. 38, pr.
D. 12. 6. And see Ortolan, 2, e 1180.
The second classification of obligations made by Justinian has regard to the way in which they arise. They were, in this aspect, either ex CM tractu or quaai ex controctu, or ex inalefieio or quasi ex malefieio. Inst. 2. 3. 13. Theae will be discussed separately.
2. Obligationes ex contractu. those founded upon an express contract, are again subdivided into four classes, with reference to the mode in which they are contracted. The contract might be entered into re, verbis, literis, or con sensu.
A contract was entered into re by the actual transfer of a thing from one party to the other. Though in such cases the under standing of the parties as to the abject of the transfer, and the conditions accompanying it, formed an essential part of the contract, yet it was only by the actual delivery of the thing that the contract was generated. The only contracts which could he entered into in this way were those known to our law as bailments,—a term derived from the French word bailler, to deliver, and evidently point ing to the same characteristic feature in the translation which the Romans indicated by the word re. These were the mutuurn, or loan of a thing to be consumed in the using an d to he returned in kind, the commodatum,or gratuitous loan of a thing to be used and re turned, the depositum, or delivery of a thing to be kept in safety for the benefit of the de positor, and the pignus, or delivery of a thing in pledge to a creditor, as security for his debt. See MUTUUM ; COMMODATUM ; DEPOSI