The word obligatio is of relative antiquity, and it comes from the word obligare, a Latin verb meaning "to bind". The idea of "mandatory duty" is implied in this word. In Roman law, an obligation meant the same thing it means for us today: how we are bound by law to comply with or not commit a certain behavior.
The notion of obligation first came alive with the development of a system of civil and public laws. In primitive times, most individuals took it upon themselves to obtain what was rightfully theirs, which is why we can say that a private system of laws was predominant. However, as the state took form and started to acquire more powers, especially once the civitas was conformed, law evolved from its private and verbal cocoon, to a more complex public and written system. In such a nubile environment, obligations arose mainly from two sources: contracts, and crimes. Obligations arose from delictual offenses because they caused damage to a victim, which needed to be indemnified by the offending party. Thus, we come to our obligations ex delicto.
Obligations ex delicto were derived from three main causes: furtum, bona vi rapta, and iniuria.
The word furtum can be translated as "theft", even though it had a more ample meaning than what we understand for theft. In Roman law, furtum meant fraudulently taking posession of a thing that belongs to another person, to obtain a profit or to use it in ways that are forbidden by natural law. For furtum to exist, a number of requisites needed to be present, first. These requisites were:
- Object: The existence of an object susceptible of being stolen.
- Action: Performed by the offending party (the thief) which implied the violation or interruption of the victim's right over his property.
- Dolus: The person committing furtum was doing so only if they acknowledged that their behavior was illegal or wrong.
- Animus lucrandi: In this requisite is where the Roman concept of furtum exceeds our
contemporary definition, because the existence of furtum required it to
not be a mere act of volition, but it needed to involve some other act
over the thing that was stolen implying a personal benefit, such as selling it for profit or retaining
it for personal use.
A victim of furtum automatically earned the right to oppose a series of actions against the criminal who committed the furtum, and these actions had two different intentions. One of them was a action of penal nature, the actio furti, looking to impose punishment to the wrongdoers. The other one was a reipersecutoria (literally, in persecution of the thing) which looked to get compensation for damages caused by the furtum.
Bona vi rapta
As a consequence of the excesses which armed gangs used to indulge in, in the times of social warfare, a praetor created a special action called actio vi bonorum raptorum for thefts committed with extreme violence, as was the case of pillaging. Initially, this action could only be opposed against a group of men, though eventually jurisdictional interpretation made it available against an individual who had engaged in such behavior. It could be opposed by the owner of the things that were stolen, and by everyone else with a legitimate interest, and it procured a punishment for the misdeeds, thus being categorized as a penal action.
The word iniuria is literally translated as "injury", but the meaning the Romans gave it implied an offense to a person's dignity, whether it was due to verbal or physical aggression. The iniura gave way to the subsequent action called actio iniurarium which procured a compensation for the offense suffered, usually quantified in monetary terms.
Even if this system of retribution seemed practical enough for its time, it didn't lack detractors. Aulus Gellius graciously commented on what he thought was excessive lenience of the law in Attic Nights:
Lucius Verratius was an extremely evil and deranged fellow. He used to amuse himself by striking free men on the face with the palm of his hand. A slave would follow after him with a purse full of small coins. Whenever he had slapped anyone, he would tell the slave to count out twenty-ﬁve asses on the spot.
Petit, Eugéne. Traité élémentaire de droit Romain. Paris, A. Rousseau – 1925.
Caramés Ferro, José M. Curso de Derecho romano. Editorial Perrot. Buenos Aires, Argentina – 1977.
Ghirardi, Juan Carlos. Manual de Derecho Romano. Ediciones Eudecor. Buenos Aires, Argentina – 1982.