LÉVY+&+CASTALDO

Lévy & Castaldo, //Histoire du droit civil//, Paris, Dalloz, 2002, pp. 643-654 - Roman law influenced our notion of obligations (but very connected to Roman reality) __ Definition __ (Roman): un lien de droit par lequel nous sommes tenus nécessairement de payer qqch à qqn selon le droit; un //rapport// between at least 2 people __ analysis of the notion __ only came at the end of the 19th c. by Germans: notions of //Schuld// (debt), //Haftung// (engagement, responsibility, constraint, //obligation//) __ Distinction of real rights and personal rights __ (= 2 parts of patrimoine): i.e. real right as direct and immediate right over a thing, includes right to follow and //droit de preference// absolute, lasts as long as the thing over which it is exercised; personal right is an obligation, relative, temporary (Romans had this distinction) __ Limits of Roman notions __ - categories of contracts and delicts is not perfect - procedural vision of obligations: verb //oportere// = “devoir” - presentation of obligations: plan remains imperfect __ Origins of modern theory __ : civil code retains vestiges of Roman conceptions but some defects corrected - to what/whom do we owe general theory of obligations? principally with Domat in 1690 __ Gaius’ classifications and his origins __ - 2 or 3 divisions? //Institutes//: sources are said to be K and delict but in //Aurei// also includes a third category - traditional explanation for this is that //institutes// is an elementary/beginner’s text – convincing? __ la presentation de Justinien __ : FOUR categories of sources i.e. contract, quasi-K, delict, quasi-delict __ precedents of the modern classification and the civil code __ : various Medieval writers took up Justinian’s 4-way classification; Pothier ended up adopting it… __ contemporary analyses __ : many 20th c. writers criticize notion of “quasi-delict”, aslso “quasi-K”, prefer //enrichissement sans cause// as general category - modern analysts also tend towards another distinction: ACTES vs. FAITS juridiques __ primitive notion of obligation __ : Justinian thought of obligation as ‘lien de droit’ in //institutes// – some have thought that in ancient times this was a //material//, not //juridical// link (physical attachment) __ primitive separation of debt (Schuld) and obligation (Haftung) __ – some theories that the distinction was made in ancient times __ anteriority of delictual obligations vis-à-vis contractual obligations __ : some theorize that hostile relations (delicts) pre-dated contractual relations in ancient times
 * LES OBLIGATIONS **
 * The //general notion// of obligation ** (Romans)
 * The //theory// of obligations **
 * the usual classification of //sources// of obligation **
 * the theories of //origins// of obligations **