PROJECT

ON

DISTINGUISH BETWEEN DUTIES AND

OBLIGATION

SUBMITTED TO:
Miss Anukriti Mishra
Faculty, Jurisprudence

SUBMITTED BY:
KANWALJEET SINGH SAINI
Roll No. 61
Semester VI, B.A., LL.B (Hons.)

SUBMITTED ON:
5 April 2014

Hidayatullah National Law University Raipur, Chhattisgarh

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 ACKNOWLEDGMENTS

I feel highly elated to work on the DISTINGUISH BETWEEN DUTIES AND

OBLIGATION
The practical realization of this project has obligated the assistance of many persons. I express
my deepest regard and gratitude forMiss Anukriti Mishra, Faculty of Jurisprudence. Her
consistent supervision, constant inspiration and invaluable guidance have been of immense help
in understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. It would be grateful to
receive comments and suggestions to further improve this project report.

-Kanwaljeet Singh Saini

Semester VI

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 TABLE OF CONTENTS

1. Acknowledgements……………………………………………………………………..2
2. Introduction……………………………………………………………………………..4
3. Research methodology………………………………………………………………….5
4. Objectives……………………………………………………………………………….5
5. Nature of study………………………………………………………………………….5
6. Sources of data………………………………………………………………………….5
7. Chapterisation
The use of the term ‘obligation’ ……………………………………………….…...6

The use of the term ‘duty’………………………………………………………...….7

Duties and Obligations according to H.L.A Hart……………………………………8

Distinction between ‘obligation’ and ‘duty’……………………………………….10
8. Conclusion……………………………………………………………………….…12
9. Bibliography ………………………………………………………………….....….13

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 INTRODUCTION

Laws are rules that may forbid individuals to perform various kinds of actions or that may
impose various obligations on individuals. Laws may require individuals to undergo punishment
for injuring other individuals. They may also specify how contracts are to be arranged and how
official documents are to be created. They may also specify how legislatures are to be assembled
and how courts are to function. They may specify how new laws are to be enacted and how old
laws are to be changed. They may exert coercive power over individuals by imposing penalties
on those individuals who do not comply with various kinds of duties or obligations. However,
not all laws may be regarded as coercive orders, because some laws may confer powers or
privileges on individuals without imposing duties or obligations on them.

Hart criticizes the concept of law that is formulated by John Austin in The Province of
Jurisprudence Determined (1832) and that proposes that all laws are commands of a legally
unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or
obligations on individuals. Hart says, however, that laws may differ from the commands of a
sovereign, because they may apply to those individuals who enact them and not merely to other
individuals. Laws may also differ from coercive orders in that they may not necessarily impose
duties or obligations but may instead confer powers or privileges.

Laws that impose duties or obligations on individuals are described by Hart as "primary rules of
obligation." In order for a system of primary rules to function effectively, "secondary rules" may
also be necessary in order to provide an authoritative statement of all the primary rules.
Secondary rules may be necessary in order to allow legislators to make changes in the primary
rules if the primary rules are found to be defective or inadequate. Secondary rules may also be
necessary in order to enable courts to resolve disputes over the interpretation and application of
the primary rules. The secondary rules of a legal system may thus include 1) rules of recognition,
2) rules of change, and 3) rules of adjudication.

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 RESEARCH METHODOLOGY

• Secondary and Electronic resources have been largely used to gather information and
data about the topic.
• Books and other reference as guided by Faculty have been primarily helpful in giving this
project a firm structure.
• Websites, dictionaries and articles have also been referred.
• Journals,scholar works and pdf. Files has been referred.
• Footnotes has been provided where ever necessary.

OBJECTIVES

• To study about Duties and Obligations.

• To study distinction between Duties and Obligations.

NATURE OF STUDY
• This research is descriptive and analytical in nature.

SOURCES OF DATA

• Various sources of data like books, cases, statutes, Internet, conventions, internet etc.
have been used.

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I. THE USE OF THE TERM ‘OBLIGATION’

The term ‘obligation’ is widely used. Depending on the context, the use of the word leads to an
univocal meaning or to ambiguous meanings. For instance, the term ‘obligation’ in the singular
or ‘obligations’ in the plural is univocal when it refers to what one party has agreed to perform
under the terms of an agreement. In this sense, the positive counterpart of the obligation is the
right (‘rights and obligations’), that is to say what the creditor is entitled to receive from the
debtor. This is a classical view of the term ‘obligation’ seen as ‘a tie which exists between at
least two individual persons which enables one person to request something from the other’ 1The
obligation should therefore be perceived as including a legal tie, a legal tie between at least two
persons and a coercitive power enabling the enforcement of the obligation. It should be
distinguished from the chose in action which is ‘the anticipation of the objective economic result
expected from the performance of the obligations’2. In this context, it would seem preferable to
focus on the term ‘obligation’ exclusively.

Other uses of the term ‘obligation’ would however appear ambiguous. Firstly, an ambiguity
occurs when the term ‘obligation’ is used to refer to the contractual relationship between the
parties. It would be preferable to refer to the global contractual relationship by the term ‘contract
or, in order to avoid any ambiguity, with wording such as ‘the relationship between the parties’.
Such a clarification would result in the parties having to fulfill obligations under the terms of the
relationship which holds them together. It would therefore be superfluous to specify that the
parties are under ‘contractual obligations’. Secondly, the use of the term ‘obligation’ is
ambiguous in French when it is understood as meaning one of the terms and conditions of
performance for the obligations undertaken by the parties. Thus, the article 7:105 of the
Principles of European contract law (PECL), entitled ‘obligation alternative’ in French, deals

1
J. GHESTIN, M. BILLIAU, G. LOISEAU, This definition appears as a common basis for the various academic
proposals.

2
J. GHESTIN, M. BILLIAU, G. LOISEAU, op. cit. n°6, p. 8.

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with ‘prestations alternatives’ in the body of the text, translated into English as ‘alternative
performance ’. In this context, the term ‘obligation’ could simply be replaced with the term
‘performance’ (‘exécution’ in French). Thirdly, it should be noted that the term ‘obligation’ is
used in a haphazard way to refer to the delivery of property. Without going into a detailed
analysis of delivery, the reference to the term ‘obligation’ may not be entirely appropriate in this
context.

Finally, an ambiguity occasionally arises, not from the use of the term ‘obligation’ but from that
of ‘engagement’ (in French). Indeed, although it is traditionally considered that consent finds its
source in the freewill of the parties and that it is the origin of the obligations, it would appear that
it is often used instead of such obligations. It would seem useful, in order to avoid ambiguities, to
determine a standard use of vocabulary, particularly since the English translations of certain
French texts are surprisingly inconsistent. Therefore, it would seem appropriate to assign an
unambiguous use to the term ‘engagement ’ (in French): it should be used as meaning the source
of the obligation. Should that be the case, and on the basis that this term is intrinsically an
expression of unilateralism, it will be necessary to specify the nature of the ‘engagement ’ and
therefore to add to the expression the adjectives ‘contractual’ or ‘unilateral’, even if the
expression ‘unilateral engagement ’ may seem pleonastic.

II. THE USE OF THE TERM ‘DUTY’

Can there be a justification for the use of the term ‘duty ’ in a few specific cases or should the
term ‘obligation’ be given preference, for the sake of simplicity and clarity? The analysis of
Acquis International and Acquis Communautaire as well as comparative law reveals
terminological hesitations. PECL devote a specific article to the ‘general duties’ of the parties
(Section 2) and also refer to the ‘duty’ of confidentiality (article 2:302).

Along the same lines, the term ‘duty’ could be narrowed to a specific use so that no confusion
arises with the term ‘obligation’. The double criterion which could be adopted in order to
differentiate ‘duty’ from ‘obligation’ could reside in the source and in the person to whom this
duty is owed.

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With regard to the source, duty is a standard of behaviour inspired by principles of contractual
justice. A contract generates two types of effects. On the one hand, it produces ‘ general
behavioural standards of a moral and social nature ’ 3, duties under which the parties find
themselves no matter what their status or the nature of the contract. These duties make up a
behavioural charter; over and above the contract, a framework into which the contract fits. On
the other hand, the contract generates an ‘economic bloc relating to the promised performance of
a material or intellectual obligation; this economic bloc is made up of obligations and therefore
necessarily linked to the particularities of the contract. The area covered by duties is wider than
that covered by obligations. A duty may be owed to a person other than the other party to the
contract. This distinction is in fact applied in English law, in order to define the duty of
confidentiality. If this double criterion is used in the context of PECL, some difficulties remain.
Should the use of the term ‘duty’ be limited to the duty of confidentiality, which, alone, could be
invoked by a third party? Or could the use of the term be widened, as is already the case, to the
‘duty’ to behave in good faith and to the ‘duty’ to collaborate? The issues raised by these
questions are also linked to the liability regime which could be called into play: certain legal
systems have a tendency to punish the violation of duties under the rules of tort, although this
tendency is not always followed coherently. Indeed, there are laws which forbid individuals to
perform various kinds of actions and impose an assortment of obligations on individuals.
Sometimes, some laws impose punishment or penalties for injuring other individuals or for not
complying with various kinds of duties or obligations.

Duties and Obligations according to H.L.A Hart

Hart disapproves of the concept of law which was formulated by John Austin in The Province of
Jurisprudence Determined (1832). Hart commences explaining his concept of law by first taking
Austin’s command theory to task. According to Austin, all laws are commands of a legally
unlimited sovereign, and he asserts that, all laws are coercive orders that impose duties or
obligations on individuals. Hart, on the other hand, says that laws may be at variance from the
commands of a sovereign in as much as they may apply to those individuals who enact them and
not merely to other individuals. Secondly, laws may also be different from coercive orders in as

3
3
D. MAZEAUD, critical comment below decision Civ. 3ème 14 September 2005, D. 2006.761, and the quotations
notes 16, 17 and 18

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much as they may not necessarily impose duties or obligations but may instead confer powers or
privileges without imposing duties or obligations on individuals. Thirdly, the continuance of pre-
existing laws cannot be explained on the basis of command; as pointed out, he was able to
demolish completely the ‘tacit command’ myth 4 . Fourthly, Austin’s ‘habit of obedience’ fails to
elucidate succession to sovereignty because it fails to take account of improvement difference
between ‘habit’ and ‘rule’. Habits only require common behaviour, which is not sufficient for a
rule. A rule has an ‘internal aspect’, i.e. people use it as a standard by which to judge and
condemn deviations; habits do not function in this manner. Succession to sovereignty occurs by
virtue of the acceptance of a rule entitling the successor to succeed, not on account of a habit of
obedience. Fifthly, Hart also uses ‘rule’ to differentiate between ‘being obliged’ and ‘having an
obligation’. Austin’s command-duty-sanction thesis fails to explain why, if a gunman threatens
X with ‘Your money or your life’, X may be obliged to hand over his purse, but has no
obligation to do so . The reason is that people have an obligation only by virtue of a rule.

Rules of obligation are distinguishable from other rules in that they are supported by great social
pressure because they are felt to be necessary to maintain society . For Hart, ‘law’ is equivalent
to ‘legal system’. According to him, legal system (law) is a system of rules comprising ‘primary
rules’ and ‘secondary rules’. These rules are ‘social’ in two senses: firstly, in as much as they
regulate the conduct of the members of the society, i.e. they are guides to human conduct and
standards of criticism of social conduct; secondly, in as much as they derive from human social
practices. Apart from these rules, there are other social rules also, for example, rules of morality.
The union of these two rules is the essence of his concept of law. Hart describes ‘primary rules
of obligation’ as rules that impose duties or obligations on individuals, such as the rules of the
criminal law or the law of tort. They are binding because of practices of acceptance which people
are required to do or to abstain from certain actions. On the other hand, secondary rules are those
which confer power, public or private, such as the law that facilitate the making of contracts,
wills, trusts, marriages, etc or which lay down rules governing the composition of powers of
courts, legislatures and other officials bodies. Primary rules are concerned with actions (that
individuals must do or must not do) involving physical movement or change whereas the
secondary rules provide for operations which lead not merely to physical movement or change,
but to the creation or variation of duties or obligations.
4
Dias, RWM (1994) Jurisprudence New Delhi: Aditya Books Private Ltd, p352.

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Thus, the secondary rules are ancillary to and are concerned with the primary rules themselves.
That is to say, the secondary rules specify the way in which the primary rules may be
conclusively ascertained, introduced, eliminated, varied, and the fact of their violation
conclusively determined. Secondary rules are chiefly procedural and remedial, and embrace not
only the rules governing sanctions but also go far beyond them. Furthermore, these rules also
extend to the rules of judicial procedure, evidence and the rules governing the procedure for new
legislation.

III. DISTINCTION BETWEEN ‘OBLIGATION’ AND ‘DUTY’

A survey of comparative law leads to an emphasis being placed on the contractualization of

standards which were originally extra-contractual and thus on the transition from the notion of
‘duty’ to that of ‘obligation’. In theory, the parties to a contract can only be bound by those
obligations to which they have agreed. However, the issue has arisen in various legal systems, in
the name of some sort of contractual justice, as to whether obligations which were not expressly
set out in the contract could be imposed upon the parties.

In this way, English law saw the development of the theory of implied terms or, in Quebec law,
the idea of ‘implied obligations’, set out in article 1434 of the Quebec Civil Code: ‘A contract
validly formed binds the parties who have entered into it not only as to what they have expressed
in it but also as to what is incident to it according to its nature and in conformity with usage,
equity or law’. This article is the equivalent of article 1135 of the French Civil Code: ‘Contracts
are binding not only as to what is expressed therein, but also as to all the consequences which
equity, usage or law attach to an obligation according to its nature’. The same terms can be found
in the Belgian Civil Code, with, as a corrollary, the obligation to act in good faith which appears
in article 1375: ‘Good faith should govern the behaviour of the parties, whether it be at the time
the obligation comes into existence, during its implementation or when it is extinguished’.
English law does not recognize a general principle of good faith (although such a statement is
gradually losing relevance in the face of Community directives which refer more and more

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frequently to the principle5) unlike number of national laws (France, Belgium, Switzerland,
Quebec, United States) and projects of uniformisation of contract law (PECL for example). The
English notion of contract, essentially economical, tends to limit its content so that the parties are
only bound by those obligations to which they have expressly agreed. However, the theory of
implied terms allows the judges, to a limited extent, to find the existence of implied terms in a
contract.

There is however, a double limit to the judges’ power: on the one hand, the judges cannot imply
a term which contradicts an express provision of the contract, and on the other hand, they must
act on the basis of a legal basis which is threefold: ‘unexpressed intentions’, ‘importation of
general civil obligations’ and ‘model contracts’. In practice, it is a standard of behaviour, ‘duties’
which are extra-contractual by nature, which are incorporated into the contract. It would
therefore appear that under English law, a duty of legal origin can become an implied term in a
contract.

5
57 See for example the Directive 93/13 of 5 April 1993, on unfair terms in consumer contracts OJEC L095 of
21/04/1993, p.29-34.

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CONCLUSION

Here, then, is my provisional list of criteria of moral obligation and duty. First,

Concerning moral obligations:

• They are designed and accepted voluntarily.

• They are incurred by joining associations of mutual advantage, or entering into
binding personal agreements.
• They are owed to specific, identifiable persons or quasi-persons (such as
corporations).
• Their content is acknowledged by all contracting parties.
Concerning moral duties:

• They apply to persons by reason of the morally relevant aspects of their offices,
status, roles, or opportunities.
• Upon accepting or acquiring such offices, status, or roles, or upon entering upon
circumstances presenting such opportunities, duties are assumed, are not voluntary,
and are morally binding.
• They are owed to persons generally, as these persons have occasion to fall under the
moral purview of one's office, status, role, or circumstance.

The obvious inconsistencies in terminology which occur in the use of the terms ‘obligation’ and
‘duty’ epitomize the difficulty caused by the theory of implied terms, which tends to impose on
the parties various standards of behavior (based on equity, usages or on the law) which are not
expressly provided for in the contract. Extra-contractual matters are therefore brought into the
contractual sphere and generate difficulties from a terminological point of view but also with
regard to the question of how such standards should be treated legally (Should a breach of such
standards be actionable in tort or in contract).

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 BIBLIOGRAPHY

BOOKS:

• Jeremy Bentham, An Introduction to the Principles of Morals and Legislations, (H.L.A.

Hart, et.al., eds., Clarendon Press: Oxford, 1996).
• S Freeman, (ed.), Collected Papers-John Rawls, (OUP: New Delhi, 1999).
• Friedman W. Legal Theory (5th ed.), universal law publishing co.pvt.ltd.
• P.J.FitzgeraldSalmond on Jurisprudence (12thed.) Universal Law Publications.
• John Austin ,Lectures on Jurisprudence ,(5th ed.), R.C ampbell
• H.L.A. Hart, The concept of law, (2nd ed.),oxford University Press, (2007)

ARTICLES:

• Diane Langmore, 'Salmond, Sir John William (1862–1924)', Australian Dictionary of

Biography, Volume 11, Melbourne University Press, 1988, pp 512–513
• McLintock, A. H. (ed.), An Encyclopaedia of New Zealand, vol 3, R. E. Owen, Government
Printer, (Wellington, 1966)
• Donald Edgar Paterson, B.A., LL.M.(N.Z.), LL.M., J.S.D.(YALE), Lecturer in Jurisprudence
and Constitutional Law, Victoria University of Wellington.
• http://indiacode.nic.in/

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