CONTRACTUAL OBLIGATION. The ob ligation which arises from a contract or agreement.
In the Roman law the expression was a familiar one, and, taking the result of the discussions of the subject by writers on the civil law, and keeping in view both the etymology and the use of the word obligation, we may define it, as there used, to be a tie binding one to the performance of a duty arising from the agreement of partied.
The term is resorted to as a relief from what he considers the misuse of the word contract and the difficulty of defining it, by Prof. Harriman, who uses It in this sense: "Nevertheless in the case of many 'contracts,' using the word in its broadest sense, we find existing an obligation with certain definite characteristics which can easily be recognized. This obligation we shall venture to call contractu al." He divides "the endless variety of obligations which the courts enforce" into irrecusable and re cusable obligations. The former are those which are imposed upon the person without his consent and without regard, to any act of his own; the latter are the result of a voluntary act on the part of the person on whom they are imposed. These terms are adopted by him from an article by Profes sor John H. Wigmore in 3 Harv. L. Rev. 200, and he again divides recusable obligations into definite and indefinite, meaning thereby to express whether the extent of the undertaking is determined by the act of the party upon whom the obligation rests or not; and to differentiate still further the precise character of definite recusable obligations, which he terms contractual obligations, Professor Hark man originates the terms unifactoral and bifactoral, as the obligation is created by the act of the party bound, or requires two acts, one by the party bound and the other by the party to be benefited. The term contractual was of constant use by writers on the civil law, and Maine, in his Early Law and Custom, refers to the German Salic Law as elab orately discussing contractual obligation. Professor Harriman's definition of this term is "that obliga tion which is imposed by the law in consequence of a voluntary act, and which is determined as to its nature and extent by that act." Harr. Cont. 27. The idea of contractual obligation he thinks was unknown to our Anglo-Saxon ancestors ; id. 15. It is undoubtedly true, as Professor Harriman asserts, that the best considered theory of contract at the present time has been a slow and tedious develop ment; but it is equally true that among the writers who have given most attention to the study of the historical development of the law there remain wide differences of opinion as to the time and man ner of its development. It is likewise to be ob
served that the theories of Professor Harriman and those who have preceded him, in the views which he has so logically and comprehensively treated, do in fact include much that is familiar to the student of the Roman law, while there is exhibited a reluctance to give to that system due credit for the principles which were fully developed in it. In his preface the author here cited quotes with approval the remark of Sir F. Pollock, that English speaking lawyers "must seek a genuine philosophy of the common law, and not be put off with a sur face dressing of Romanized generalities." It may be suggested that when, after centuries of an unsci entific development of the English law of contract (due to causes which Professor Harriman well sketches in Part II. of his introduction), what seems to be not only a better, but the true theory has come to be recognized, and developed ; the coin cidence of that theory with the root idea of the sub , ject, as expressed in so scientific a system as the Roman law, should be acknowledged and utilized, rather than ignored, or characterized as "recasting English ideas and institutions in a Roman mould." It may be safely asserted that neither contract nor contractual obligation is an English idea or insti tution, but an idea of human civilization. Maine says we have no society disclosed to us destitute of the conception ; Anc. Law 303. It is equally creditable to us to have discovered and developed the correct idea of it after it has been overlaid with the misconceptions of the common law, as to its true nature, as it was to the Civilians to have formulated it correctly as part of their scientifically constructed system. That a concurrence is reached by these distinct processes is strong confirmation of the accuracy of the result. The reader is also re ferred to Keenqr, Quasi-Contracts ; Holmes, Com mon Law ; Sanders, Inst. of Justinian ; Howe, Studies in the Civil Law, which contains a state ment of the subject of obligations in the Roman law.