Obligatio In Archaic Roman Law

INTRODUCTION

Archaic Roman law, not unlike early Germanic law developed from law revolving around family units. Thus, all Roman law we know and study today has developed from these primitive laws created out of necessity, governing fields such as familial relationships, succession and property. The concept of obligatio developed from the need for law to govern relations which do not always relate to the family unit, such as performance resulting from a binding agreement in the form of a contract or compensation with regards to a delict.

The XII Tables was the first known source of law which regulated the concept of obligatio. The development of this concept in its primitive form from contractus and delictus will be discussed below.

THE CONCEPT

The concept of obligatio is an ancient one, founded in Roman law and the basis of modern law of contracts.

In Roman law the term contractus was reserved for those conventions which were specially recognised as obligatory, and identified by an action under the ancient civil law. The contractus of Roman law was a unique agreement, which could be enforced by an actio civilis which was provided for in the Ius Civile, the civil law of Rome, available to Roman citizens. Although the contractus was based on consensus between the parties, it still had to comply with strict formal requirements, prescribed for the specific agreement, in order to be enforceable.

In support of my argument that the development of the concept of obligatio arose from contractus, it may be noted that contractus took four forms in Roman law, namely: oral agreements (contractus verbis); written contracts (contractus litteris); real agreements (contractus); and consensual contracts (contractus

The effect of the nexum was that the debtor (the nexus) would be held liable (a key concept of obligatio) if he did not pay the specific amount received , the debtor in essence pledged himself as collateral. Non-fulfilment meant that the creditor could “attach” the debtor personally by way of manus iniectio which means to “manually grab him.” The debtor was damnas (“condemned”) to repay the creditor the money. The creditor could further have the debtor chained and could in some instances have him sold and transported across the river Tiber or be killed.

As a result of the manus iniectio, the debtors rights were of little consequence and the principle of talio (“retaliation”) was used when payment was not received.

Procedure

The nexum was concluded by way of a procedure per aes et libram (“by way of bronze and a scale”) in the presence of 5 adult Roman citizens as witnesses and a scale holder (librepens). The means of exchange of earliest times, unminted copper or aes rude, was weighed and handed to the debtor, while the creditor presumably uttered the following