Ex obligatio

Question 1

Quasi contracts

Answer 1

Viewed as a category of implied contracts where there should or could have been an agreement but because of particular facts, there was not.

Obligations for which a liability is implicit in a relation and is imposed by law, though not created or undertaken by any direct act of the obligor.

The person is placed in such circumstances, that he is thereby bound to another.

Question 2

Quasi contracts - similarities to contracts

Answer 2

• Negotiorum gestio: similarity to mandatum (quasi ex mandato)
• Common ownership: similarity to societas
• Condictio indebiti: similarity to mistaken mutuum

=> quasi ex contractu: “arise as if out of contract”
=> Birks: the difference is the absence of agreement: lawful actions that bring into being involuntary obligations.

Question 3

Quasi contracts - Nicholas

Answer 3

Unites that quasi contracts through the concept of unjust enrichment.

• The gesture is allowed to recover expenses or otherwise, the principal would be unjustly enriched.
• Common ownership: actio communi dividundo can be regarded as preventing the unjust enrichment of any of the co-owners.

BUT

• Birks notes the actio negotiobum gestorum directa (the gestor is not enriched - just a standard to be kept to.
• Unjust enrichment may be the purpose of the entire civil law: is it not specific enough a rationale?

Question 4

Quasi contracts - Post and Noyes

Answer 4

Poste: these relations are assimilable to agency or partnership.

Noyes: erstwhile, purely internal familial relations projected outside the sphere of the family.

Question 5

Quasi contracts - the condictiones

Answer 5

If the rationale is based on lawfulness, Birks notes that it is difficult to see the condictio given after theft as a quasi-contract.

• But maybe it is no accident that the texts do not consider every event in the condictiones family.
• These apparently unlawful events can be admitted on the ground that though they do involve unlawfulness , it is no qua forbidden acts, that they trigger a condictio.

Question 6

Quasi delicts - Chastaignet

Answer 6

Delicts were dolus based and quasi delicts were culpa base - this view made its way into the French Civil Code.

Question 7

Quasi delicts - Buckland

Answer 7

Quasi delicts corresponded to vicarious liability:

• Iudex litem suam facit: but for whom is the judge vicariously liable?
• Things thrown/poured/placed/suspended: Justinian and Paul both suggest culpa in eligendo/vicarious liability for the person who placed the object.
• Shipper/stablekeepers/innkeepers: vicariously liability for the delict committed.

Question 8

Quasi delicts - Arangio Ruiz

Answer 8

The distinction between civil and praetorian obligations.

Question 9

Quasi delicts - Kelly/Birks

Answer 9

“Prior assumption of special position by the defendant”:

• Iudex litem suam facit: prior assumption by the iudex towards the claimant?
• Things thrown/poured/placed/suspended: assumption of responsibility by the occupier (duty of care similarity?)
• Shipper/stablekeepers/innkeepers: clear assumption of responsibility (D.4.9.1.1)

Question 10

Quasi delicts - Descheemaeker

Answer 10

Strict liability: wrongs culpa-less, with institutional wrongs being with culpa/dolus (although note issues with iniuria - only intention)

• Iudex litem suam facit:

(i) Failure to give a valid decision: appears strict (panel 91 of lex Irnitana: “at the judge’s peril”).
(ii) Errors of fact/law: note Ulpian suggesting dolus only. But Gaius and Justinian. According to Descheemaeker, strict liability makes more sense (stakes high in view of lack of appeals).

• Things thrown/poured/placed/suspended: Appears strict. Although note Watson: habitat only liable if aware.

Note Gorden: master unaware (noxal action); master ordered (direct action); master aware (?). Descheemaeker argues that there will be a legal fiction that he placed it and therefore, a direct action will lie.

• Shipper/stablekeepers/innkeepers: clearly strict liability (non-delegable duty or vicarious liability - but note culpa in eligendo?)

Question 11

Quasi delicts - Descheemaeker (difficulties)

Answer 11

• Iudex certainly “in a way at fault, if only from ignorance”.
• Habitator “to a certain extent, guilty of fault in using the labour of unsatisfactory people”

Are these Byzantine interpolations? Examples of Gaius attempting to find fault - quasi culpa?