OBLIGATION

S AND
PROCEDURE
MODULE 6
 OBLIGATIONS
• Synonym for duty

• Correlatives of right

• Obligation – bond of legal necessity that binds

two or more individuals

• Example – Duty to pay a debt, duty to refrain

from interference with other person’s property
• Obligation – Two sides

• Looked at from the point of the person entitled,

an obligation is a right; looked at from the point
of view of the person bound, it is a duty
• All obligations pertain to the sphere of
proprietary rights – They form part of the estate
of him who is entitled to them

• Roman Law – Person entitled to the benefit of

the obligation – creditor, while he who was
bound by it was called debitor
• Chose in action and Chose in possession

• Chose in action – proprietary right in personam

• A debt, claim for damages for a tort

• A non-proprietary right in personam such as that

which arises from a contract to marry is not a
chose in action
• Chose in possession – All rights other than chose
in action will be chose in possession

• Historically – The meaning differed

• Chose in possession – Any thing or right which

was accompanied by possession, while a chose in
action was any thing or right of which the
claimant had no possession, but which he must
obtain, by way of action of law
• Money in a man’s purse was a thing in possession; money
due to him by a debtor was a thing in action

• Real and personal rights

• Originally shares would probably have been classes as

things in possession, but they are now things in action.

• Land and chattels are now things in possession, whether

the owner retains possession of them or not

• The old law nor the new law is clear about immaterial
property like patents, copyrights and trademarks
• SOLIDARY OBLIGATIONS – Two or more
creditors, or two or more debtors under the same
liability
• Debt owing by a firm of partners – debtor is
liable for the whole amount due. He may exact
the whole sum from one, and leave that one to
recover from his co-debtors.
• A and B owe Rs 100 to C. A and B do not owe
Rs 50 each.
• Solidary – Language of Roman law, each of the
debtors is bound in solidum instead of pro parte
– for the whole and not for a proportionate part.
• Several – Separately liable
• Joint – Jointly liable
• Joint and several - Both
• Examples: Two people owe money to X –
independent of each other
• Partners in a firm owe money to Company Z
• Manufacturer might construct a piece of
machinery with a fault in its assembly that can
cause harm to the user through regular usage.
That machinery is later inspected and approved
by a designated inspector, but the user of the
machinery is harmed
• Thompson v The London County Council (1899)

• Damage is one but the cause of action which led

to that damage are two, committed by two
different personalities

• Liability – Several, not joint,

• SOURCES OF OBLIGATIONS

• 1) Obligations arising from contracts

• 2) Obligations arising from torts

• 3) Obligations arising from quasi-contracts

• 4) Innominate obligations
• 1) Obligations arising from contracts
• Creates right in personam between the parties to it.
• Obligation to pay damages for a breach of contract is
itself to be classed as contractual, no less than the
original obligation to perform the contract
• Promise to marry – Contractual? Does it impose an
obligation?
• 2) Obligations arising out from torts

• A tort may be defined as a civil wrong, for

which the remedy is an action for damages, and
which is not solely the breach of a trust or other
merely equitable obligation.
• Essentials:

• A) A tort is a civil wrong; crimes are wrongs, but

are not in themselves torts, though there is
nothing to prevent the same act from belonging
to both these classes at once
• B) Civil wrong may not be a tort, unless the appropriate
remedy for it is an action for damages
• Civil remedies like – Injunctions, payment of liquidated
sums of money by way of penalty or otherwise
• Any civil injury which gives rise to one of these forms of
remedy, is not a tort
• Obstruction of public highway – Civil injury, it even
gives rise to civil proceedings (Tort if by reason of special
damage suffered by an individual, it gives rise to an
action for damages at his suit
• C) Merely breach of a contract is not a tort
• Liability for torts and liability for breach of contract
are governed by different principles
• However, the same act can be both a tort and a
breach of contract
• Borrowed chattel (Contractual and otherwise too)
• If X lends his car to Y, who delivers it to Z, a garage
owner to be looked after, and the car is destroyed,
presumably Z is liable for this, not only in contract to
Y, but also in tort to X, the owner of the car
3) Obligations arising from quasi-contracts
• Don’t rest on agreement but the law treats as it they were.
• Implied contracts, or contract simply and without
qualification
• Judgment – Contractual obligation
• Blackstone – Implied contracts are such as reason and
justice dictate, and which therefore the law presumes that
every man undertakes to perform
• True contract – Contract implied in fact – inferred
from the conduct of the parties
• A) A debt is an obligation – The law orders any one
to pay, that becomes instantly a debt which he hath
beforehand contracted to discharge – Blackstone
• If two persons acting independently of each other
guarantee the same debt, and one of them is
subsequently compelled to pay the whole, he can
recover half of the amount from the other, as due to
him under a contract implied in law, although not in
fact
• B) Law allow you to waive the tort and sue in
contract

• If one wrongfully takes away my goods and sells

them, he is guilty of the tort known as trespass, and
his obligation to pay damages for the loss suffered by
me is in tort. I may waive the tort and sue him on a
fictitious contract, demanding from him the payment
of the money so received by him from sale of goods
• Reasons why law recognizes quasi-contracts
• Traditional classification – torts and contracts
• Development of law – Promise not necessary for
you to pay
• Desire of plaintiff to obtain the benefit of
efficiency of contractual remedies
• 4) Innominate obligations

• Obligations of the trustees towards their

beneficiaries
 PROCEDURE
• SUBSTANTIVE LAW AND THE LAW OF
PROCEDURE

• Substantive law is that which defines the rights, while

procedural law determines the remedies

• There are some rights like right to give evidence on one’s

own behalf, right to interrogate the other party –
Procedural law

• Rules defining the remedy may be as much a part of the

substantive law as are those which define the right itself
• The substantive part of the criminal law deals not
with crimes alone, but with punishments also

• The law of procedure may be defined as that branch

of the law which governs the process of litigation

• Law of actions – Jus quod ad actiones pertinet

• The term action – wide sense to include all legal

proceedings, civil or criminal
• Substantive law relates not to the process of
litigation, but to its purposes and subject matter;
concerned with the ends which the
administration of justice seeks

• Procedural law deals with the means and

instruments by which those ends are to be
attained – regulates the conduct and relations of
courts and litigants in respect of the litigation
itself
• I have the right to recover certain property –
substantive law – determination and protection of
such rights

• What courts and within what time I must institute

proceedings are questions of procedural law, for
they relate merely to the modes in which the
courts fulfill their functions
• What facts constitute a wrong – substantive
• What facts constitute proof of a wrong – procedure
• Whether an offence is punishable by fine or by
imprisonment – Substantive
• But how the punishment has to be imposed and by whom
– Procedure
• Administration of Justice - Substantive law defines
remedy and the right, Procedural law defines mode and
conditions of the application of the one to the other
 EVIDENCE
• One fact is evidence of another when it tends in any
degree to render the existence of the other probable
• The quality by virtue of which it has such an effect may
be called its probative force and evidence may therefore
be defined as any fact which possesses such force
• Probative force – any degree of intensity
• When it is great enough to form a rational basis for the
interference that the fact so evidenced really exists, the
evidence possessing it is said to constitute proof
• Fact which is evidence, and the fact of which it is
evidence
• Former – Evidential fact, the latter the principal
fact
• Example: Murder – Principal fact; finding the
bloodstained knife – Evidential fact
• Chain of evidence A of B, B of C, C of D and so
on
• 1. Judicial or Extrajudicial evidence

• 2. Personal or Real

• 3. Primary or Secondary

• 4. Direct or Circumstantial
• THE VALUATION OF EVIDENCE

• 1) Conclusive proof – Fact amounts to proof

irrespective of the existence or non-existence of
any other facts whatsoever what may possess
probative force in the contrary direction
• 2) Conditional presumptions – A person accused
of any offence is presumed to be innocent

• A person shown not to have been heard of for

seven years by those who would naturally have
heard of him if he had been alive, is presumed to
be dead
• 3) Insufficient evidence – Probative force falls
short of that required for proof

• 4) Exclusive evidence – A written contract can

generally be proved in no other way than by the
production of the writing itself

• 5) Facts which are not evidence – Destitute of

any probative force at all (Hear say evidence)