Abstract

OBLIGATIONES QUASI EX DELICTO . FROM THE RESEARCH ON THE SOURCES OF OBLIGATIONS IN THE ROMAN LAW

Summary
There is scarce literature on the sources of Roman obligatio. The opinions presented therein are very often contradictory, mostly because this issue was variously defined in the Roman law. On the one hand, Gaius in his Institutiones, which he wrote in the middle of the 2nd century AD, claimed that every obligation is derived from either ex contractu or ex delicto. Whereas on the other hand, Justinian’s Institutiones, constituting part of his codifications from the 6th century AD, divided the sources of obligations into four types, supplementing Gaius’ division with obligationes quasi ex contractu and quasi ex delicto (maleficio). The above issue is analysed in the first part of this article, where the attempts (made by Ulpian and Modestinus, as well as by the author of Res cottidianae) to supplement the classification of the sources of obligations proposed by Gaius are also presented. Gaius’ classification, which proved useful for the didactic goals, has become insufficient in the course of time.

In the Gaian and Justinian tradition concerning the sources of obligations there are two elements which spark controversy. The first one is the meaning ascribed to the term contractus in Gaius’ Institutiones. Another questionable matter is quasi-de\ictsy since a range of various hypotheses exists in the doctrine of the Roman jurists concerning the criteria regarding this type of liability. This issue is discussed in the second part of the article. Analysing the above mentioned sources, the author comes to a conclusion that out of all theories set forth until now, the only valid one is the theory which assumes the so-called - in modern terminology (objective liability as a basis of quasi-delicts. He also notes that the question of the exact number of cases which could be included into this category still remains open, since different cases of the so-called objective liability existed and they are not called quasi-deX\cts in the sources.