Salmond defines obligation in the legal sense as a proprietary right in personam or a duty which corresponds to such a right. It is that part of the law which creates rights in personam.
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According to Anson,
“obligation is a control exercisable by definite persons over definite persons for the purpose of definite acts or forbearances reducible to a money value. The freedom of the person is limited only in reference to some particular act or series or class of acts. The tic which thus binds one another is termed by Roman lawyers as vinculum juris, which lasts until the objects of the control are satisfied, when their fulfillment affects a solution obligation, an unfastening of the legal bond.”
ADVERTISEMENTS:
A technical synonym for ‘obligation’ is chose in action or things in action. A chose in action may be described as a valuable personal right, e.g., a debt, a share in a limited company or a claim for damages in tort, etc. It is a proprietary right in personam.
Its Different Senses:
There are three senses in which the term “obligation” is used. In the first place, it is a synonym for legal duty. In the second place, used in a narrower sense, it means duty corresponding to a proprietary right in personam.
And in the third place, it is a vinculum juris or bond of legal necessity between two or more parties, i.e., duty from one point of view and right from another. But in all cases obligations pertain to proprietary rights.
Obligation differs from liability in that the former refers to a duty laid upon a person which he ought to do, while the latter refers .0 something which a person must do because he has failed to do what le ought to have.
Sources of Obligations:
The sources of obligations, according to Salmond, are four, viz., (1) Contractual—obligations ex contract, (2) Delictl—obligationes ex delicate, (3) Quasi-contractual—obligations quasi ex contract, and (4) In nominate.
(1) Contractual Obligations:
ADVERTISEMENTS:
Contractual obligations are those which are created by contract or agreements which create rights in personam between the parties, e.g., contract of sale and purchase, leases and guarantee. The rights so created are generally proprietary in nature, but sometimes they may not be proprietary though in personam e.g., promise of marriage.
(2) Delictal Obligations:
Delictal obligations arise from torts. Salmond defines a tort as a “civil wrong for which the remedy is an action for damages and which is not solely the breach of a contract or the breach of trust or any other merely equitable obligation.”
(3) Quasi-contractual obligations:
Quasi-contractual obligations are enforced by the law on equitable principles. Both in Roman law and English Law there are certain obligations which are not in truth contractual, but which the law treats as if they were.
ADVERTISEMENTS:
They are contractual in law, but not in fact. The Romans termed them obligations quasi ex contract, while English lawyers call them quasi- contracts or implied contracts.
Salmond says, “It is a fictitious extension of the sphere of contract to cover obligations which do not in reality fall within it.” Most of these quasi- contracts or obligations quasi ex contract fall in either of the two following classes:
(i) All debts in general are contractual in origin, and most debts are obligations ex contracts in fact, but some have a different source. The liability of the judgment-debtor to the judgment-creditor is held to be contractual.
A judgment creates a debt, although it is non-contractual, and yet the law treats it as falling within the sphere of contract. Similarly, where pays money to B under a mistake, B is liable to pay back the money to A. Here, although there is no promise by B to A to pay the money, yet the law implies a promise.
(ii) All these cases in which a person injured by a tort is allowed by the law to waive the tort and sue in contract instead. Such obligations being in truth delictal are allowed to be treated as contractual at the plaintiff’s option. Thus, if A obtains money from B by fraudulent misrepresentation, B may sue him either in tort for damages for the deceit, or may waive the tort and sue on a fictitious contract for the return of money.
(4) In nominate Obligations:
In nominate obligations are those obligations which fall in none of the three classes noted above. In this class fall the obligations of trustees towards their beneficiaries.