Classification
of obligations distinguishes those which are civil from those which are
natural, the natural obligation being one which is not enforceable by action.
It consists, therefore, of an imperfect right and duty. Another classification
of greater importance is based upon the nature of the acts and forbearances
forming the content of the right and duty of which the obligation cinsists.
from this point of view From this point
distinguished as either binding a person to something, to do something, or not
to do something
The classification adopted by the Egyptian
Codes divided them according to their sources. Three classes are there
distinguished, namely, obligations arising from agreement, obligations arising
from an act or event, and obligations arising from a rule of law.
In a strict sense all obligations are, of
course, crcated by the law, but there is a distinction between those which the
law enforces as recognizing the will of the parties directs to their creation
and those which owe their existence to the law alone. That is to say, some come
into existence without breach of any pre-existing right, and others are only
created by the law to sanction a breack of right. Those arising from contract
are clearly due to the recognition by the law of the will of the parties
directed to their formation, while those arising from delict (or quasidelict)
as clearly belong to the class of obligations imposed by the law
irrespective of the parties will
There remains a mass of obligations as ords the
proper classification of some of which considerable doubt exists. This class
includes
quasi-contractual obligations, obligations
arising from a trust or waqf, the obligation to pay alimony,and so on.
It will be well in the first place to discuss
distinction between contractual and delictual obligations.
Contractual and delictual obligations : write
what do you know about
A contract was there defined as an agreement
giving rise to rights in personam. The obligations arising from contract
itself. Certain special contracts in general use call, indeed, for separate
treatment in all systems of law. Of these the most important are sale, lease,
hire, loan, and agency.
The obligation which arises on a contract is
antecedent in character. If Mohamed agrees to build a house for Houssam he is
performing his legal duty and fulfilling Houssams legal right in
for carrying out the operations necessary
constructing the house. Should he fail to perform his duty he will commit a
breach of right which may be termed a wrong, The wrong is in that case breach
of a pre-existing contractual right. The commission of the wrong gives rise to
a remedial right on the part of the person wrong
It often
happens, that a person commits a legal wrong by failing to perform a duty which
did not arise from contract. Such duties are imposed by the law and may be in
personum as owing to determinate persons or in rem as owing to the community at
large. The class of duties in personum created by the law failing within the category
of obligations will be considered later. The case we are now considering is
that of the breach of an antecedent duty in rem. Such a breach is a wrong, but
it is a wrong independent of contract. No personal relation existed between the
parties previous to the breach of right.
.
A wrong
independent of contract is termed a delict or quasi-delict, and the obligation
to which it gives rise is delictual or quasidelictual. The distinction between
contractual obligation therefore clear, the former being antecedent in
character and arising from agreement, while the latter is remedial and springs
from a breach of a pre-existing non-contractual right.
The
attention is now directed to both contractual and delictual wrongs. Differences
exist between their effects because the rights broken in each case are
different in character, not, as is sometimes suggested, because delict does not
presuppose an antecedent right.
There is
a certain moral implication in the terms used in this part of our subject.
"Fault"
and "wrong imply moral condemnation. They suggest that the breach of right
might have been and ought to have been avoided. This might
that
liability both lead to supposition
the
contractual and delictual is founded on personal delinquency, but at the
present day it is certainly not true as regards contractual liability and only
partially true in the case of delicts.
It is not necessary for the plaintiff to show
any delinquency on the part of the defendant. In the case of delicts, however,
the opposite rule is laid own; delict fault is not presumed, but must be
proved. This is supposed to indicate a radical difference between
contractual and delictual liability. It is remebered that a delict is always
the breach of some pre-existing right, it must be clear that proof of a breach
is necessary in order to establish delictual liability. In most cases the right
in question is not a right to absolute immunity from damage, but only to
immunity from damage wilfully inflicted or arising from negligence.
Art 1385 of the French Civil Code makes the
owner of an animal liable for damage done by the such cases fault is said to be
animal, and in presumed. What is implied by this presumption is a matter of
controversy, according to many writers the owner is liable whatever care may
have been taken to avoid the damage. He can, however, admittedly escape
liability by proving that the damage resulted from force majeure, but this
would not prevent it being true to say that his liability was independent of
any moral falut on his part.
However this may be, it is at least clear that
the legislature has expressly made certain persons liable in damages as insures
against certain kinds of accident, independent of fault. Thus both
France and in England employers are liable.
comparisation for injury suffered by their
workman in the
course of their employment even though the
acciuch was not the result of any negligence on the part of the employer. And
some contend that t principle of insurance ought to be extended so as to cover
all cases of damage done by the acts of others independent of the existence or
non-existence of "fault".
It is
not, indeed, possible to discover any absolute principle which will enable us
to mark off acts which constitute deliects from those which although causing
damage will yet not give rise to liability. The public interest demands that,
within certain vaguely defined limits, men should be left free to employ their
power as they please and to make such use of their property as seems good to
them.' The rights to protection against the acts of others accorded by the law
are not infringed by acts which fall within these limits, ever though such acts
may be done with the intention of causing damage. If Ahmed builds a factory
upon his land which entirely spoils the amenity of the neighbourhood and
depreciates the value of Hausam's adjoining property, this gives Housam no
right to claim compensation for the damage done, even though Ahmed may have
well known the injury the factory would do and may even have desired to do the
injury out of hatred to Houssam. Workmen who strike work , tradesmen who start
rival shops, and so on, all do damage to others, and do it intentionally, yet
their action is no cause of liability. Each system of law will draw the
delicate houndary line between lawful and unlawful damage at the slightly
different point, but at some point a line must necessarily be drawn. naung di
It
remains to point out that the rule that he who does an act through another is
himself liable, is expressly applied by French and Egyptian law to the
commission of delicts, a master being responsible for the acts of his servant
when done in the course of his employment. This liability is, in fact, no more
than an application of the ordinary rules of agency.
Contractual
and delictual obligations compte the bulk of the obligations met with in
everyday The classes of antecedent obligations which remain are of a
more exceptional character. These obligations will be here discussed under four
heads,
it wit :
1.
Obligations arising from a trust or wagf,
2.
Quasi-contractual obligation,
3. Obligations annexed by the law to domestic
status.
4.
Public obligations imposed by the law.
1.
Obligations arising from trust or waqf:
The
essential characteristic of the trust and of the waqf is that the trustee or
nazir is bound by law to administer the property subjected to the trust for the
benefit not of the persons for whom it was instituted. There is an obligation
existing between the trustee and the beneficiary which consists in a duty laid
upon the trustee towards the beneficiary and a corresponding right against the
trustee on the part of the beneficiary. enero bem
In the
case of a private trust or waqf the beneficiary who holds the right is a
private person, while when the trust is of a public character, we ay regard the
class of persons for whose benefit it was instituted as the persons entitled,
or possibly in some cases the state as representing the common interests of the
community.
Now the
special peculiarity of trust obligations is that they exist independent of an
contract made between the trustee and the beneficiary. When, for example, a
person creates a waqf or trust for the benefit of his descendants, the
descendants as they come into existence become holders of rights enforceable
against the trustee or nazir which entitle them to have the property
administered for their benefit. Yet these rights do not arise from a contract
between them and the trustee. Sed
It is
sometimes said that such trust obligations arise from the law, and they are
thus differentiated from contractual obligations which arise from the will of
the panties. Their creation does not indeed demand any consensus of will on the
part of the person bound and the person entitled; the trustee owes a duty to
the beneficiary though he has never agreed with the beneficiary that he will
owe such a duty, and the beneficiary is entitled to a right against the trustee
though he has never agreed
with the
trustee to that effect. Nevertheless, the law does not create such obligations
except as recognizing the will of private individuals directed to their
formation. The obligation be ween the trustee and the beneficiary does not
exist in virtue of a general rule of law, but is the efect of the specific
recognition by the law of the will of the founder seeking to benefit third
parties, coupled perhaps with that of the trustee, who by acceptance of the
trust, expresses his willingness to undertake the duties thereof. It is a
generally acknowledged rule that the legal effects of a contract are confined
to the contracting parties. warteoainee
2.
Quasi-contractual obligations :
Quasi-contractual
obligations, arise whenever the law implies an obligation, not in recognition
of an agreement, but as the result of an act which normally would be done in
compliance with an agreement.
Quasi-contractual
obligations are classified by the Egyptian codes with dilictual obligations as
arising from an act of event”.
The
commonest instances of this class of
obligations are two in number :
property 1. when a perons voluntarily renders
some necessary service to property or business in
the absence of the owner, an act which may give
rise to a duty of indemnification on the part of the owner and to one of
completing his service on the part of the person who has undertaken it.
2. When
a person pays money not really due the resulting obligation here being one of
repayment by the payee.
Regarded
as a statement of legal principle this maxim shares the defects of other
similar maxims. It lacks precision, but it serves to express a broad rule of
legal justice of which many examples are to be found in all systems. It is
because they result in the enrichment of one person at the expense of another
such situations is held to give rise to legal liability, and the language in
which the Civil code establishes the claim to indemnity on the part of the
person who has acted for the benefit of another itself shows that this is the
basis of his claim the act of one person intentionally procuring a benefit for
another binds that other person to account for any expenses, ... etc.".
But
apart from these cases in which express vi provision is made by the law for
restitution based
son
enrichissment. The modern French & Egyptian vir jurisprudence seem inclined
to admit that in all o cases in which the facts warrant it the person
unjustifiably
enriched at another's expense is liable to an action at the suit of the person
at whose expense he was enriched for the purpose of making
good the
latter's loss up to the amount of the gain which the former has secured.
3.
Obligations arising from domestic status :
in the
Civil Code, a chapter is added which purports to treat obligations
"created by the law".
The only
obligation mentioned under this latter head is that of making alimentary
provision for relatives imposed upon members of the same family. The occurrence
of rules upon this subject in the Civil Code is curious, since the subject
belongs properly to the Personal Statuts. Nor do the articles in question
correctly state the Islamic law upon the subject. It is difficult to see why
the Egyptian legislator has gone out of his way to create a special class to
cover a particular species of obligation which does not fall within the purview
of the Civil
us
alimony
Code. In
the French Civil Code the rules alimony are placed under the law of persons
(family law). This is, no doubt, the more convenient place for its treatment.
The obligation to pay alimony is rightly regarded as imposed by a rule of law
rather than as created in deference to the specific will of the parties.n
sa asd
Tool or noir
4.
Public obligations :
Of
obligations imposed by the law upon citizens as a whole and consisting of
duties owed to the state, we may cite as example the duty to pay taxes (P) and
to serve in the army. silon
Joint
and several obligations :
Each system
of law has its own methods of working out the sequences of such joint holding
in the various forms which it may take.
Obligations solidaires occur when two or more
persons are jointly bound or jointly entitled to the same thing but by separate
obligations. Though each debtor is bound to the creditor for the whole sum, yet
as between the debtors themselves each is. only liable for his share.
Consequently, if one pays the whole he has a right of recourse against the
others to obtain repayment to him of the shares of the debt due from them.
The solidary character of the obligation may
result from agreement or from special provision of the law. Thus the civil code
provides that delictual obligations shall be joint and several. The Egyptian
code have here innovated and specially provide that, in the absence of a
stipulation for joint and several liability or circumstances which make such a
stipulation implicit, the creditor has no right of action against the sureties
except for their respective shares tha
When, as in the case just mentioned, a creditor
cannot sue any one of the debtors for the whole of 'the debt, there is not
really a joint obligation at all.
In French law; when several persons are
together bound for payment of a debt, but each is liable only for his share,
the obligation is said to be "conjoints".
When in the code we find that an obligation is
expressly stated not to be joint and implication is that it is
"Conjointe".
Although the examples above given debtors
jointly and severally liable, it is of course,
and possible to conceive of creditors jointly
severally entitled, in which case any one of the creditors is competent to sue
separately and to give a receipt for the whole debt. This situation is often
termed Active Solidarity to distinguish it from joint and several liability to
which the "epithet” Passive Solidarity is applied.
Egyptian
law regards joint and several debtors and creditors as reciprocal agents for
each other in all dealings in connection with the debt and applies the rules of
agency to govem their mutual relations. The detailed explanation of the
operation of this principle cannot be entered into here. It suffices to say
that, as between creditors solidarily entitled, it places the creditor who
sues, or who receives payment, in the position of the representative of the
others, to whom he is consequently liable to account for what he receiven. The
Egyptian code lays down that " when the performance of an obligation
cannot, whether in the nature of things
in view
of the purpose of the obligation, be divided, each of the debtors is liable for
the whole, subject to his right of recourse against his codebtors"
