(..6 g..)
OBLIGATION[1]
QUESTION BANK
- 1 Discuss the nature of obligations. Describe different sources of obligation.
SHORT NOTES
- Solidary obligation.
I. Introduction-
The term ‘Obligation’ comes from the Latin word ‘Obligare’, which means “to tie around” or ‘bind’. “Obligation” in its popular sense is merely a synonym of ‘duty’.
‘Obligations’ are merely one class of duties.
II. Definition of Obligation-
1. According to Holland-
‘Obligation’ is “a tie, whereby one person is bound to perform some act for the benefit of another”.
2. According to Paton-
“An obligation is that part of the law which creates rights in personam”.
3. According to Anson-
“Obligation is a kind of control exercised by a determinate person over a certain determinate person for some specific acts, or it may also be called a forbearance which has been valued in terms of money”.
4. According to Salmond-
“An Obligation” is a proprietary right in personam or duty which corresponds to such right”.
According to Salmand nature of the obligation is vinclum juris, a bond of legal necessity which binds or links together two persons, one who is endowed with a right and the other who is bound with a corresponding duty.
III. Nature of Obligation-
To be qualified as an obligation, a right must be proprietary and must also be in personam. A proprietary right[2] is a right related to property (corporeal or incorporeal), and a right in personam[3] is a right available against a particular person. Thus, the obligation is a proprietary right in personam, e.g. an obligation to receive debt, an obligation to receive goods under the contract, etc.
Under English law, a technical synonym for an obligation is chose in action (i.e. thing in action)[4].
Chose in action.-
A ‘chose in action is a proprietary right in personam that a legal action can enforce, e.g. a debt, a claim for damages, a share in a limited company, etc. It is also called “an actionable claim” in English Law. The Transfer of Property Act defines “actionable claims” as ‘a claim to any debt other than a debt secured by a mortgage of immovable property or by hypothecation or pledge of moveable property, or to any beneficial interest in movable property, not in the possession actual or constructive”. Thus a patent right, a copyright, arrears of rent, an annuity etc., are actionable claims and, therefore, chose in action.
There is another concept of “chose in possession.[5]”. The concept of ‘chose in action’ is different from the concept of ‘chose in possession’. All proprietary rights in personam are chosen in action. In ‘chose in action’ the claimant has no present possession, but he can obtain it if needed by way of action, i.e. suit at law. Whereas ‘chose in possession’ refers to anything or right which is accompanied by possession.
Thus, the money in a man’s purse is a ‘chose in possession’, whereas money lent to others is ‘chose in action’.
Solidary Obligation (Discussed in the note at the end of this topic).
IV Kinds or sources of obligation-
Kinds or Sources of obligation are divided into the following classes-
1) Contractual Obligation-
The most important class of obligations is created by contract. Contracts are agreements between two parties that create rights in personam, e.g. Contract of sale and purchase, lease, guarantee etc. The rights so created are generally proprietary in nature, but sometimes they may not be proprietary though in personas—E.g. the promise of marriage falls within the law of status.
2) Tortious obligations-
These obligations are also called ‘delicate obligations’. These obligations arise out of torts. A tortious obligation is a liability to pay pecuniary damages for a civil wrong. Thus, defamation, trespass, negligence, malicious prosecution etc., are some of the instances which incur civil liability, which needs to be satisfied by payment of compensation.
3) Quasi Contractual Obligations-
These obligations are regarded by law as contractual though they are not so in fact. In the Indian Contract Act, we find quasi-contractual liability for necessaries supplied to a person incapable, the liability of finder of goods, the liability of a person to whom services are not provided gratuitously by another, the liability of the person to whom goods are delivered mistakenly. We call these contractual obligations (in the Indian Contract Act) ‘certain relations resembling those created by contract’.
4) Innominate Obligations-
Those are the residuary class of obligations. Obligations that are not covered under any of the aforesaid three categories are called ‘Innominate obligations’. Thus, obligations of trustees towards their beneficiaries and other equitable obligations are instances of Innominate Obligations.
In conclusion, we may say that although the concept of obligation differs from that of liability, both are closely interrelated. A person’s liability arises out of his obligation.
NOTE
Solidary[6] Obligation-
The person who benefits from the obligation is called a ‘creditor’, and the person who is bound is called a debtor’. Normally, there is one creditor and one debtor in an obligation. However, in certain transactions, there may be two or more creditors or two or more debtors. It is in the case where two or more debtors owe the same debt to a common creditor that their obligation is called a ‘solidary obligation’. For example, a partnership consisting of three members, A, B, and C, is indebted to creditor D and owes a debt of Rs. 30,000 to him. In law, all partners have a solidary obligation to pay the whole debt of Rs. 30,000. In law, it is a single debt of Rs. 30000 owed by each of the three partners to D, and it is not the separate debt of Rs. 10,000 owed by each to D. By law, creditor D can compel each of the partners to pay the whole sum of Rs. 30000/. Creditor D is not obliged to divide his claim into three partners with Rs. 10,000 each.
Thus, in solidary obligation, each of the debtors is bound for the whole debt (solidum) and not the proportionate part of it (pro parte). In other words, when two or more persons owe the same thing to the same creditor, there comes a ‘solidary obligation’.
‘Solidary obligations’ are of following kings.-
(i) Several Solidary Obligations[7]–
Solidary obligations are several when, although the thing or debt owned is the same in each case, there are as many distinct obligations and causes of action as there are debtors. Each debtor is bonded to the creditor by the distinct and independent legal action (i.e. Vinculum juris) to pay the whole debt. Payment of the whole debt by any one of the debtors discharges other debtors also.
Thus, if B lends Rs. 2000 to C and D, both are responsible for the whole amount, not C for Rs. 1000 and D for Rs. 1000. This is the solidary obligation of action.
In this case, B, a creditor, has the right against both C and D to recover the whole debt amount by filing suit against C or even against D and recover the whole amount. Payment of the whole amount of Rs. 2000/- by either C or D discharges others also. But if B files suit only against D and discharges C (without payment), it does not discharge D automatically. Moreover, B has a right to recover the whole debt from D alone.
(ii) Joint Solidary Obligation[8]:-
In joint solidary obligations, even though there are two or more debtors, the debt is only one, and only one cause of action exists against them all. In other words, the creditor can bring only one legal action (vinculum juris) against all debtors jointly, unlike several actions against all debtors in several solidary obligations. Thus, the single debtor cannot be held liable to pay the whole debt under a joint solitary obligation. If the creditor discharges (without payment) any of the debtors or does not bring legal action against all of them, then all will be discharged from the obligation of paying the debt. If a single debtor pays the whole debt, it discharges all debtors.
Thus, if B lends Rs. 2000 to C and D, and the obligation is joint and several, B has to file only one suit against both C and D because only one right of action (or legal tie or vinculum juris) exists. If B does not bring action against both at a time or discharges one of them (without payment), it automatically discharges other debtors also. This is because there exists only one legal action against all debtors jointly.
(iii) Joint and Several Solidary Obligations[9]–
‘Joint and several solidary obligations’ is the combination of the earlier two obligations. In this case, each debtor is separately liable for the whole debt as well as all are jointly liable for the whole debt.
Therefore, the creditor has the right of action, or there exists a legal tie against all of them separately as well as jointly against all or some of them.
Thus, if B is a creditor and C, D, and E are joint debtors, B can recover it either from C, or from D, or from E, or he can even recover it from them all jointly or from the combination of them, i.e. from C and D or D and F discharging one or two of them. Discharging one or some of the debtors (without payment) does not discharge other debtors from the obligation of paying the whole debt.
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[1] कर्तव्य, बंधन/जबाबदारी [कर्तव्य, दायित्व / जिम्मेदारी ]
[2] द्रश्य अथवा अद्रश्य मिळकत [दृश्य या अदृश्य आय ]
[3] व्यक्तीगत [व्यक्तिगत रूप से ]
[4] क्रियाषिल वस्तु किंवा एका व्यक्तीचा दुस-या व्यक्ती विरूध्दचा मिळकतीतील अधिकार कि ज्या मिळकतीचा कब्जा त्यास दावा करून मिळविता येतो. [संपत्ति या कब्जे में दावा किया जा सकता है कि एक कार्रवाई योग्य वस्तु या दूसरे के खिलाफ एक व्यक्ति का अधिकार। ]
[5] कब्जासह अधिकार [कब्जे के साथ अधिकार ]
[6] एकत्रीत [साथ साथ ]
[7] स्वतंत्र एकत्रीत बंधण/कर्तव्य [अलग सामूहिक में दायित्व / दायित्व ]
[8] एकत्रीत बंधण/कर्तव्य [सामूहिक दायित्व/कर्तव्य]
[9] स्वतंत्र व एकत्रीत बंधण/कर्तव्य [अलग और संयुक्त दायित्व/दायित्व ]