Right of the obligations

The right of the obligations is the hard core of the private law. Right term the “of the obligations” is very general and accounts only partially for the reality which it contains. Traditionally, the right of the obligations is cut out in three parts of unequal importance.

the study of the obligations of voluntary origin: it is primarily about the Contrat
the study of the obligations of legal origin: they are the criminal or quasi criminal civil responsibility and the quasi contracts
the study of the General scheme of the obligations: it is of the circulation and the extinction of the obligations

Definition of the obligation

With the general direction, an obligation is a duty citizen rising from various rules of which religious rules and morals. With the legal direction it is only about the duty rising from the legal provisions.

Concerning the obligations of the private law, the term with a significance even narrower because it indicates a patrimonial bond linking the legal people between them. More precisely it is a bond of subjective, patrimonial and personal right. He is the creator of a liability and a receivable respectively on the head of the debtor and the creditor.

These characters explain the fact that the whole inheritance of the debtor answers of it of his debt, as well as the fact that the obligations are transmitted by succession.

In France, the Civil code does not define sufficiently what is an obligation. In its article 1101, the Civil code gives only the definition of the Contrat (which is only one means of voluntarily creating an obligation): “The contract is a convention by which one or more people oblige, towards one or more others, to give, do or not to do something”.

Tripartite classification of the obligations

According to the source: obligations of legal or voluntary origin

According to the object: obligations to give, make or not to make (art.1136 at 1145).

According to the force: obligations civil (legal or obligatory) or natural obligations.

Legal and voluntary sources of the obligations

Obligations of legal origin

The quasi contract

Quasi the contract is an obligation which is created apart from any agreement: management of business of others, recovery of overpayments; unjustified enrichment.

The Management of business

When a person takes in hand, whereas it was by no means obliged there, the management of the businesses of others because of the urgency, is born in her chief the obligation to go until at the end of management and in the chief of the owner, the obligation to compensate. For example, your neighbor left to make the round the world tour as a recluse without means of contacting it, its roof flies away following a storm and you take the initiative to cover the house to avoid other damage.

The Recovery of overpayments

The Payment of the undue money and the action which results from this, the recovery of undue payment, is the obligation which has a person to return what was given to him by error. For example, following an error in a credit transfer, you receive a sum which is not intended to you. You have the obligation to return it.

The Unjustified enrichment

The Court of appeal devoted unjustified enrichment in its famous stop Boudier returned by the Room of the Requests on June 15th, 1892. Deriving from equity, it allows that which was impoverished without legitimate ground to exert a specific action against that which grew rich. Such is for example the case of that which built, without the knowledge, on the ground of others and which see the construction thus made become the property, by accession, of that to which the ground belongs (Article 552 of the Civil code).

The criminal responsibility

“Which breaks pay”. That which by its fault causes with others a damage with the obligation to repair it.

See: criminal civil responsibility.

Obligations of voluntary origin

Unilateral engagement

The unilateral engagement of will is before a whole unilateral act. The unilateral acts are unilateral demonstrations of will which produce effects of right:

will produces effects of right (but does not produce obligation for the author)
recognition of a produced natural child of the effects of right (but does not produce obligation for the author)
renunciation extinguishes a right (but does not produce obligation for the author)

These unilateral acts thus produce effects of right whose nature is not an obligation for their author. Among the unilateral acts, only unilateral engagement could create obligations for its author. This is why the unilateral engagement of will is a particular unilateral act whose existence is sometimes called into question.

Traditionally, the French right does not admit that a unilateral demonstration of will can create obligations for its author. Thus unilateral engagement would not exist. Several reasons were advanced in this direction. One finds the idea according to which “if only one will could create a duty then it could also demolish it, which is opposed by definition to the concept of obligation”, or the idea according to which “a Man could become creditor without to have chosen it” and finally the idea “only an agreement of wills between two people, i.e. a contract, is likely to create an obligation for the debtor for the benefit of the creditor”.

Two concrete assumptions sowed the doubt as for this impossibility. It was of “the promise of reward” and about “the letter of intent”. It was specified, thereafter, that it was not of a unilateral engagement but about an offer of contract, which once accepted formed a true contract (Com. January 15th, 1991). Thus the obligation rose from the contract and not from a unilateral engagement.

However the Court of appeal already recognized the existence of a unilateral engagement:

when she wishes to justify the judgment of abusive advertizing executives to carry out their chimerical promises (RTD.civ 1995.887 observation Mestre, Civ. March 28th, 1995)

when she wishes to explain the transformation of a natural obligation into a civil obligation (Dalloz 1997.155 notes Pignarre, Civ. Oct. 10, 1995)

when she wishes to sanction the employer who does not respect the made promises (Dalloz 2004.2395, note OMARJEE, Soc. November 25th, 2003)

Lastly, one can notice that the Principles of the European right of contracts (DRC 2004.774, P. Deumier) comprise article 2.107 laying out that “the promise which tends to be juridically obligatory without acceptance binds its author”.

The contract

The contract is an agreement of will, creator of obligations. The will is the gasoline even contract.

With the difference of the unilateral legal document, the commitments entered into by contract give birth to a receivable for one from the two parts and a liability for the other. The unilateral legal document is a demonstration of only one will which will cause obligation. It is the case of the will, the recognition of a natural child, a check or renunciation of a right.

The French design rests traditionally on the autonomy of the will to justify that a person can engage in a contract. The autonomy of the will is a concept borrowed from Kant: " any justice is contractual, which known as contractual said " just; , in the Doctrines of the right; it was thus logical that the concept was used by the legal practice.

The theory of the autonomy of the will is based on a postulate which is that each individual is free and that it contracts under the terms of this freedom. At present this vision seems to be scrambled because freedom to contract is reduced. In addition to the need which there exists for all to contract to provide for its vital needs, the modern society puts at the load of each one the obligation to contract in certain circumstances. The obligation to ensure itself to be able to use a vehicle on the public highway is a obvious example, which is the share of the will in this type of contract?

Sources of the right of the obligations in France

Civil code (Article 1101 to 2278)
Commercial law
Code of consumption
Labor regulation
rural Code
Code of the insurances
not codified Laws
constitutional Law
Community legislation
European Right
International law….

See: Right of the obligations (France)

Internal bonds

legal Contract
Document
Right of the obligations (France)

External bond

History of the right of the obligations

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