Dr.

Ahmad Alhusban

Sources of Obligation

Before studying the sources of obligation, some important terminologies must be

reviewed and some crucial questions must be asked.

• Law

• Obligation

• Right

• Debtor

• Creditor

• Commitment

• Duty

• Default rule

• Mandatory rule

In addition, some important question must be answered in order to help us to

understand the nature of the sources of obligation:

• Question 1: What is an obligation?

• Question 2: What does mean the term “sources of obligation”?

• Question 3: Why do students in accounting and commercial law program

take this course?

• Question 4: What is the legal framework that govern source of obligation?

and commercial law students?

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’1.

The law of obligations is one branch of private law under the civil law legal

system. It is the body of rules that organizes and regulates the rights and duties

arising between individuals. The specific rights and duties are referred to as

obligations, and this area of law deals with their creation, effects and extinction.

1
J. GHESTIN, M. BILLIAU, G. LOISEAU, Le régime des créances et des dettes, Traité de droit civil, LGDJ,
2005, n°4, p.3. This definition appears as a common basis for the various academic proposals
An obligation is a legal bond by which one or more parties (obligants) are bound

to act or refrain from acting. An obligation thus imposes on the obligor a duty to

perform, and simultaneously creates a corresponding right to demand

performance by the obligee to whom performance is to be tendered.

Justinian first defines an obligation as "a legal bond, with which we are bound by

necessity of performing some act according to the laws of our State." He further

separates the law of obligations into contracts, delicts, quasi-contracts, and quasi-

delicts.

According to the Jordanian civil law Art. 68; legal relationship between an

obligee and an obligor whereby the obligee has a claim against his obligor for the

transfer of a property right, or to perform or refrain from performing an act.

Elements of obligation

Every obligation has four essential requisites otherwise known as the elements of

obligation. They are:

1. The obligor: obligant duty-bound to fulfill the obligation; he who has a

duty.

2. The obligee: obligant entitled to demand the fulfillment of the obligation;

he who has a right.

4. A legal bond: the cause that binds or connects the obligants to the

prestation.

Types of obligations

There are many types of obligations (e.g. civil, natural, social, religious, moral).

However, mainly there are two types of obligations, civil and natural obligations:

Civil obligation is the one which has been established by one of the sources of

obligation and has two elements: legal relationship (creditor and debtor) ad

enforceability where the creditor is eligible to enforce the debtor to execute the

obligation. Whereas natural obligation was basically a civil obligation but it

turned natural because of missing the enforceability element for a legal reason

such as the prescription.

Natural obligation cannot be established by any sources of obligation, which is

the opposite of the civil obligation. As a result, natural obligation is based on a

civil obligation at the very beginning.

In relation to social obligation, there is no a legal promise. Consequently, the

absence of the legal relationship as a creditor and debtor between parties in the

social obligation leads to ignore discussing the enforceability element. For

example, if a father promises his son to help the latter in his wedding expenses,

the son cannot enforce the father later on by the court to execute this social
obligation. The uncertainty of how much, when, where and other terms and

condition makes this obligation uncertain. However, if the father promises his

son to pay 10.000 Jordanian dinar if the son gets married from a specific girl, this

obligation is certain and, as a result, is considered as a civil obligation. In any

event, the relationship between the parties is considered social but not legal.

Therefore, it may create social effect rather than legal; and the fail of execution

of a social obligation may face

Classification

Obligations arising out of the will of the parties are called voluntary, and those

imposed by operation of law are called involuntary.

Sometimes these are called conventional and obediential. The events giving rise

to obligations may be further distinguished into specified categories.

Voluntary

• Bilateral promise (contract)

• Unilateral promise - undertaking by promisor only to perform, not

requiring the agreement of the beneficiary

• Quasi-contract
 Involuntary

• Delicts and quasi-delicts (equivalent to the common-law tort).

• Unjust enrichment

• Law

However, according to the Jordanian civil law the Personal obligations or rights

shall arise out of dispositions, legal events and the law, and the sources of

obligations shall be as follows:-

1. contracts;

2. unilateral acts;

3. acts causing harm (torts);

4. acts conferring a benefit; and

5. the law.