vustudents
09-07-2011, 12:33 AM
Q. Explain the kinds of obligations. (1998 Annual), (1996)
Q . Explain the following:
(d) Obligations arising form contract
(e) Obligation arising form Torts
(f) Obligations arising Quasi contract
Q. Discuss the nature of obligations. What are solidary obligations.
1. Introduction:
An obligation is termed as chose in action A chose-in-action means a proprietary right in personam. It includes a duty to pay the debt, the perform a contract or to pay damages for a tort but not duty to refrain form interference with the person, property or reputation of others.
2. Definition Of Obligation:
I. According To Salmond:
An obligation may be defined as a proprietary right in personam of a duty which corresponds such a right.:
II. According To Paton:
An obligation is that part the law which cerates rights in personam.
III. According To Kant:
An obligation is the possession of the will of another as a means of determining it through my own, in accordance with the law of freedom, to a definite act.
3. Nature Of Obligation:
A technical synonym for an obligation is a chose-in-action which is opposed to chose-in-possession.
According to Dias and Hugher:
The term obligation is the name not only of a duty but also of a correlative right. Looked at form the point of view of the person entitled, an obligation is a right looked at form entitled, an obligation is a right looked at form the point of view of the person bound, it is a duty. All obligation pertain to the proprietary rights. They form part of the estate of the proprietary who is entitled to them.
Chose-in-action means personal right of property which can only be claimed or enforced by action and not be taking physical possession chose-in-possession means things capable of physical possession and delivery i.e., tangible object.
4. Types Of Obligations:
Obligation are of the following types:
I. Ordinary
II. Solidary
I. Ordinary Obligation:
An ordinary obligations is one in which there is only one creditor and one debtor.
II. Solidary Obligation:
According to Salmond:
A solidary obligation may be defined as one in which two more debtors owe the same thing to the same creditor.
Examples of solidary obligation are debts owing by a firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties, obligation of this description may be called soclidary since each of the debtor in solidum instead of pro parte, which means for the whole and not for a proportionate part.
A. Kinds Of Solidary Obligations:
In English law, following are the different kinds of soclidary obligation.
(i) Several obligation:
Solidary obligation are several when there are as many distinct obligation and causes of action as there are debtors. Each debtor is bound to the creditor by a distinct and independent bond of legal obligation between each of the debtors and the creditor. The only connection between them being that in case the subject matter of the obligation is the same with the result that performance by one of the debtors discharges all others.
(a) Determination of several obligations:
According to Salmond generally such obligation are several when they have the same subject-matter but different sources. They are several in nature if they are distinct in their origin.
Example:
When A has received a loam form C under a promissory-note executed by him on a particular debt and at a subsequent debt B guarantees the same debt of A by executing a surety bond, the liability of both A and B is several.
(ii) Joint obligation:
Solidary obligation are joint when though there are two or more debtors there is only one debt to other cause of action as well as only one thing wed. There is only one single legal obligation which binds all the debtors to the same creditor. All debtors are discharged by anything which discharges any one them.
(a) Determination of Joint obligation:
According to salmond, obligation are joint when they have the same subject-matter and the same source.
Example:
A has received a long form C on the execution of promissory-note executed by A and B on the same date. B being only a surety, the liability is one of joint solidary obligation.
(iii) Joint and several obligations:
They stand halfway between several and joint obligations. They are product of a compromise between two competing. For some purposes, the law treats them as joint and for other purposes several.
(a) Determination of joint and Several Obligations:
According to salmond, joint and several obligation are those joint obligation, which the law, for several reasons, chooses to treat in special respects as if they were several
Example:
If a promise is made by A, B, C, to X. X may sue at his option, only A or only B, only ;C; or may two if them or all three of them.
5. Sources Or Kinds Of Obligation:
If we classify obligation form the point of view of sources, we have following kinds of obligations.
I. Contractual Obligations:
Contractual obligation are those which are created by contracts or agreements. These obligations cerate rights in personam between the parties. The rights so created are generally proprietary rights. Sometimes a contract creates rights which are not proprietary though they are in personam e.g., promise of marriage.
II. Delictal Obligation:
These obligation arising form torts. A tort is a civil wrong arising through a breach of a duty imposed by law, the remedy for which is an action for damages. Delictal obligations are those in which a sum of money is to be paid as compensation for a tort. The general duty of tort is a right in rem and cannot fall within the law of obligation. It is only the secondary rights to secure damages, which arises out of the breach of the primary right, that is right in persoman and so an obligation.
III. Quasi-Contractual Obligations:
Quasi-contractual obligation are those which are regarded contracted by law thought they are not in fact.
(i) Classes of Quasi-contractual obligations:
To salmond these quasi-contracts fall into class and are bases on the fiction of implied contracts.
(a) Debts created by law:
In general theory, all debts are contractual in origin, but there are certain debts which are not contractual in origin. Where the order any one to pay, that becomes a debt which he has pay e.g., a judgment creates a debt which is non-contractual.
(b) Fictitious contract:
These are the cases in which a person injured by a tort is allowed by law to waive the tort and sue in contract instead. Thus a person who wrongfully takes a tort. The owner may waive the tort and sue him on a fictitious contract demanding form him the payment of money as if he had sold the good as his agent.
IV. Innominate Obligations:
These are a residuary class of obligations, obligations which cannot be designated as contractual delictal or quasi-contractual are termed as innoninate obligations.
Examples:
Examples of such obligation are the obligations of trustees towards their beneficiaries etc.
6. Conclusion:
To conclude, I can say, that an obligation is the bond of legal necessity, which binds together two or more determinate individuals obligations are merely one class of duties which are correlatives of rights in personam.
Q . Explain the following:
(d) Obligations arising form contract
(e) Obligation arising form Torts
(f) Obligations arising Quasi contract
Q. Discuss the nature of obligations. What are solidary obligations.
1. Introduction:
An obligation is termed as chose in action A chose-in-action means a proprietary right in personam. It includes a duty to pay the debt, the perform a contract or to pay damages for a tort but not duty to refrain form interference with the person, property or reputation of others.
2. Definition Of Obligation:
I. According To Salmond:
An obligation may be defined as a proprietary right in personam of a duty which corresponds such a right.:
II. According To Paton:
An obligation is that part the law which cerates rights in personam.
III. According To Kant:
An obligation is the possession of the will of another as a means of determining it through my own, in accordance with the law of freedom, to a definite act.
3. Nature Of Obligation:
A technical synonym for an obligation is a chose-in-action which is opposed to chose-in-possession.
According to Dias and Hugher:
The term obligation is the name not only of a duty but also of a correlative right. Looked at form the point of view of the person entitled, an obligation is a right looked at form entitled, an obligation is a right looked at form the point of view of the person bound, it is a duty. All obligation pertain to the proprietary rights. They form part of the estate of the proprietary who is entitled to them.
Chose-in-action means personal right of property which can only be claimed or enforced by action and not be taking physical possession chose-in-possession means things capable of physical possession and delivery i.e., tangible object.
4. Types Of Obligations:
Obligation are of the following types:
I. Ordinary
II. Solidary
I. Ordinary Obligation:
An ordinary obligations is one in which there is only one creditor and one debtor.
II. Solidary Obligation:
According to Salmond:
A solidary obligation may be defined as one in which two more debtors owe the same thing to the same creditor.
Examples of solidary obligation are debts owing by a firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties, obligation of this description may be called soclidary since each of the debtor in solidum instead of pro parte, which means for the whole and not for a proportionate part.
A. Kinds Of Solidary Obligations:
In English law, following are the different kinds of soclidary obligation.
(i) Several obligation:
Solidary obligation are several when there are as many distinct obligation and causes of action as there are debtors. Each debtor is bound to the creditor by a distinct and independent bond of legal obligation between each of the debtors and the creditor. The only connection between them being that in case the subject matter of the obligation is the same with the result that performance by one of the debtors discharges all others.
(a) Determination of several obligations:
According to Salmond generally such obligation are several when they have the same subject-matter but different sources. They are several in nature if they are distinct in their origin.
Example:
When A has received a loam form C under a promissory-note executed by him on a particular debt and at a subsequent debt B guarantees the same debt of A by executing a surety bond, the liability of both A and B is several.
(ii) Joint obligation:
Solidary obligation are joint when though there are two or more debtors there is only one debt to other cause of action as well as only one thing wed. There is only one single legal obligation which binds all the debtors to the same creditor. All debtors are discharged by anything which discharges any one them.
(a) Determination of Joint obligation:
According to salmond, obligation are joint when they have the same subject-matter and the same source.
Example:
A has received a long form C on the execution of promissory-note executed by A and B on the same date. B being only a surety, the liability is one of joint solidary obligation.
(iii) Joint and several obligations:
They stand halfway between several and joint obligations. They are product of a compromise between two competing. For some purposes, the law treats them as joint and for other purposes several.
(a) Determination of joint and Several Obligations:
According to salmond, joint and several obligation are those joint obligation, which the law, for several reasons, chooses to treat in special respects as if they were several
Example:
If a promise is made by A, B, C, to X. X may sue at his option, only A or only B, only ;C; or may two if them or all three of them.
5. Sources Or Kinds Of Obligation:
If we classify obligation form the point of view of sources, we have following kinds of obligations.
I. Contractual Obligations:
Contractual obligation are those which are created by contracts or agreements. These obligations cerate rights in personam between the parties. The rights so created are generally proprietary rights. Sometimes a contract creates rights which are not proprietary though they are in personam e.g., promise of marriage.
II. Delictal Obligation:
These obligation arising form torts. A tort is a civil wrong arising through a breach of a duty imposed by law, the remedy for which is an action for damages. Delictal obligations are those in which a sum of money is to be paid as compensation for a tort. The general duty of tort is a right in rem and cannot fall within the law of obligation. It is only the secondary rights to secure damages, which arises out of the breach of the primary right, that is right in persoman and so an obligation.
III. Quasi-Contractual Obligations:
Quasi-contractual obligation are those which are regarded contracted by law thought they are not in fact.
(i) Classes of Quasi-contractual obligations:
To salmond these quasi-contracts fall into class and are bases on the fiction of implied contracts.
(a) Debts created by law:
In general theory, all debts are contractual in origin, but there are certain debts which are not contractual in origin. Where the order any one to pay, that becomes a debt which he has pay e.g., a judgment creates a debt which is non-contractual.
(b) Fictitious contract:
These are the cases in which a person injured by a tort is allowed by law to waive the tort and sue in contract instead. Thus a person who wrongfully takes a tort. The owner may waive the tort and sue him on a fictitious contract demanding form him the payment of money as if he had sold the good as his agent.
IV. Innominate Obligations:
These are a residuary class of obligations, obligations which cannot be designated as contractual delictal or quasi-contractual are termed as innoninate obligations.
Examples:
Examples of such obligation are the obligations of trustees towards their beneficiaries etc.
6. Conclusion:
To conclude, I can say, that an obligation is the bond of legal necessity, which binds together two or more determinate individuals obligations are merely one class of duties which are correlatives of rights in personam.