National University of Study and Research in Law, Ranchi
Ranchi - Jharkhand
THE CONCEPT OF DUTY AND OBLIGATION: A COMPARATIVE ANAYSIS
SUBMITTED BY SUBMITTED TO
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Semester - V
Introduction:
In law, they are pretty much the same thing. The word "duty" is a legal term of art and means that
some act or refraining from some act is required by statute, the common law or contract. For
instance, a person has a duty to obey traffic laws and not drive a motor vehicle in a manner that
is likely to cause an accident or injure other people. Likewise, the common law which is a set of
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principles or rules that have been developed by the courts over many years and are followed in
court cases can impose duties. For instance, there are certain mutual duties between a principal
and his agent that are enforced by the courts, and there is a general duty under the common law
not to act in a manner that puts someone in danger even though the act itself might not be illegal.
There are also duties imposed by contract such as a requirement that a party to the contract
perform some act or pay some amount. These duties are often called "contractual obligations" or
the "obligation of contracts." In everyday life, an obligation is often something self-imposed or
moral, such as taking care of a friend who is sick or destitute. In law, an obligation is usually
something that is required.
Chapter - 1: The concept of Duty
"We shall set before ourselves the concept of duty, which contains that of a good will though
under certain subjective limitations and hindrances, which, however, far from concealing it and
making it un-recognizable, rather bring it out by contrast and make it shine forth all the more
brightly."
Duty is derived from French word "due" meaning "that which is owing" and also Latin word
debere, debitum, which means "debt". It is a term that conveys a sense of moral commitment or
obligation to someone or something. The moral commitment should result in action, it is not a
matter of passive feeling or mere recognition. When someone recognizes a duty, that person
theoretically commits himself to its fulfilment without considering their own self-interest. This is
not to suggest that living a life of duty entirely precludes a life of leisure; however, its fulfilment
generally involves some sacrifice of immediate self-interest. Typically, "the demands of justice,
honor, and reputation are deeply bound up" with duty."
CICERO an early philosopher who discusses duty in his work "On Duty", suggests that duties
can come from four different sources:
1. as result of being human
2. as a result of one's particular place in life (one's family, one's country, one's job
3. as a result of one's character
4. as a result of one's own moral expectations for oneself
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Various derivative uses of the word have sprung from the root idea of obligation, a concept
involved in the notion of duty; thus it is used in the services performed by a minister of a church,
by a soldier, or by any employee or servant.
Many schools of thought have debated the idea of duty. While many assert mankind's duty on
their own terms, some philosophers have absolutely rejected a sense of duty. Duty has to be
accepted and understood on the basis of one's foundation of sense and knowledge. Therefore,
duty and its manifestations vary with values from culture to culture. On one hand duty may be
seen as terms of reference, job description, or behavior and it is all of that... but duty is not only
about doing things right, it is about doing the right thing.
According to SALMOND: "A duty is an obligatory act, that is, to say it an act which is opposite
of which would be a wrong. Duties and wrongs are correlatives. The commission of a wrong is
the breach of a duty and the performance of a duty is the avoidance of wrong."
Mackie, rather more loosely, seems to include notions of what ought to be done, what must not
be done, and what is obligatory into the notion of 'duty'. Duties are of two kinds, legal and moral.
A legal duty is an act the opposite of which is a legal wrong. It is an act recognized as a duty by
law and treated as such for the administration of justice. A moral or natural duty is an act the
opposite of which is a moral or natural wrong.
A duty may be moral but not legal, or legal but not moral, or both at once In the case of England,
there is a legal duty not to sell or have for sale adulterated milk knowingly. There is no legal duty
in England to refrain from offensive curiosity about one's neighbors even if its satisfaction does
them harm. There is a moral duty but not a legal duty. There is both a legal and moral duty not to
steal.
Chapter - 2: Classification of Duties
POSITIVE AND NEGATIVE DUTIES: - Duties may be positive or negative. When the law
obliges us to do an act, the duty is called positive. When the law obliges us to forbear from doing
an act, the duty is negative. If R has a right to a land, there is a corresponding duty on persons
generally not to interfere with his exclusive use of the land. Such a duty is a negative duty. It is
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extinguished only if the right itself is extinguished. If S owes a sum of money to Y. the latter is
under a duty to pay the amount due. This is a positive duty. In the case of positive duties, the
performance of the duty extinguishes both duty and right but a negative duty can never be
extinguished by fulfilment.
PRIMARY AND SECONDARY DUTIES: Duties can also be primary and secondary: Primary
duties are those which exist per se and independently of any other duty. An example of a primary
duty is to forbear from causing personal injury to another. A secondary duty, on the other hand, is
that which has no independent existence but exists only for the enforcement of other duties. An
example of a secondary duty is the duty to pay a man damages for the injury already done to his
person. It is also called a remedial, restitutory or sanctioning duly.
According to SALMOND, if a law recognizes an act as a duty, it generally enforces its
performance and punishes those who disregard the same.
ABSOLUTE AND RELATIVE DUTIES: - According to KEETON, a duty is an act or
forbearance compelled by the State in respect of a right vested in another and the breach of
which is a wrong. According to HIBBERT, duties are imposed on persons and require acts and
forbearances which are their object. HIBBERT refers to absolute and relative duties. Absolute
duties are owed only to the State. The breach of an absolute duty is generally a crime and the
remedy is the punishment of the offender and not the payment of any compensation to the injured
party. Relative duties are owed to a person other than the one imposing them. The breach of a
relative duty is called a civil injury and its remedy is compensation or restitution to the injured
party
According to AUSTIN, some duties are absolute. Those duties do not have a corresponding
right. Examples of absolute duties are self-regarding duties such as a duty not to commit suicide
or become intoxicated, a duty to indeterminate persons or the public such as a duty not to commit
a nuisance, a duty to one not a human being such as a duty towards God or animals and a duty to
sovereign or State.
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If we examine these four classes of duties critically, they are reduced to one category and that is
the duties to the State. A duty not to commit suicide or nuisance is enforced by the State and can
be included in the category of duties to the State. The result is that the corresponding right vests
in the State.
However, the view of AUSTIN is that "a sovereign government in its collegiate or sovereign
capacity has no legal rights against its own subjects" and therefore the duties towards the State
are absolute duties. DR. ALLEN, MARKBY and HIBBERT support AUSTIN.
ALLEN writes: The State, no doubt, may have definite rights-interests in the strict sense, similar
to those of the individual citizen’s rights of a very different kind from the right to punish' or 'right
to command' or the 'right of sovereignty'. It may enter into contracts and other relationships
which give birth to rights and duties in the ordinary legal sense." Where the State imposes duties
by virtue of its sovereign character, Allen denies that there are correlative rights in the State. To
quote him "A State, for example, compels children to go to school, or to be vaccinated, prohibits
the sale of certain drugs or alcoholic liquors, or forbids the importation of animals which have
not first been quarantined." In such cases, the State has no corresponding right. Particularly, the
duties enforced by criminal law are absolute duties. According to Hibbert: "The distinction
between absolute and relative duties is logical and convenient since it harmonizes with the
distinction between might and right”.
The view of Austin is criticized by GRAY, POLLOCK and SALMOND. According to
SALMOND: There can be no duty without a right any more than there can be a husband without
a wife or a parent without a child." The result is that rights and duties are always correlated and
there is absolutely no scope for absolute duties. The view of POLLOCK is that "there seems to
be no valid reason against ascribing rights to the State in all cases where its officers are enjoined
or authorized to take steps for causing the law to be observed and breakers of the law to be
punished." Chapter - 3: The concept of Obligation
The philosophical basis of obligation traces as far back as ancient Roman law which defines
obligation as a means of an agreement or legally binding commitments where one party promises
the other party to perform certain actions or do something. Ancient well-known Roman lawyers
defined obligations on the basis of their personal opinion and established the definition of
obligation as a result.
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Year Gay, a Roman jurist, defines obligation as a means of personal claim brought against
another to force him to give us so that we can enforce our rights before us". Gay also classifies
obligations as contract, quasi-contract, criminal offense and quasi-delict.
Pavel year also understood the obligation as an undertaking not undertaken by Roman citizens to
perform certain acts or to do or give or render rights to non-Roman citizens in relation to giving,
doing or rendering certain rights to roman citizens.
The concept of obligation by both classical legal scholars was unilateral in character and
discriminatory in nature since it imposes obligation to do, to give or to render rights only on
nonroman citizens not the Romans.
However, the institute of Justinian defines obligation as a legally binding relations when Roman
citizens undertake to perform certain acts or to do something in accordance with the Roman law.
Obligation defined in the institute of Justinian, differed from the obligations defined in the
classical
Roman jurists in that the institute defines obligation in the aspect that Roman citizens to carry
out. In general, the concept of obligation can clearly be expressed as;
a) Obligation to give or not to give
b) Obligation to do or not to do
c) Obligation to render rights to others to do something.
Definition of Obligations
Black's law dictionary defines obligation as a legal duty or moral duty to do or not to do
something". Common-law scholars such as Fredrick Pollock defines obligation in its popular
sense as merely synonym for 'duty. In its legal sense derived from roman laws 'an obligation is
the bond of legal necessity or vinculum juris which binds together two or more determinate
individuals".
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John Salmond (year) defined obligation in its more general acceptation as "something the law or
morals command a person to do a command that is made effective by the imposition of sanction
if a person failed to comply such a command".
In the modern legal systems and currently existing legal materials, there is no exact or single
whole definition of obligation. However, some scholars define it based on their own legal system
For instance French judges define the term obligation as a legally binding relations to another
party is obliged to give or to do or not to do something.
Likewise the Ethiopian civil code, in the book IV of the code uses the term obligations without
defining what it means. However, like French judges who define obligations indirectly from
article 1101 of the French civil code of the term contract as an agreement whereby two or more
persons as between themselves create, vary or extinguish obligations of proprietary nature.
Sources of obligations
According to Gay, Roman jurist, the fundamental source of obligation can be classified into two:
a) Contract
b) Beyond the contract
Those obligations, which arises beyond the contract, are divided into unjust enrichment (quasi
contract), unlawful acts (delict) and causing physical injure to the person or causing damage to
property of person (quasi-delict).
In modern time, the laws of different countries clearly express the sources of obligation. For
instance, French civil code classifies the source of obligation as;
i. Obligation that arises from contract
ii) Obligations that arise beyond the contract iii)Obligation that arises from the unlawful
acts iv) Obligations that arises from the causing of physical injure or causing material
damage v) Obligations arising from law.
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In Ethiopian legal system, there are no clearly stated classifications of sources of obligations.But
Art. 1675 of Ethiopian civil code generally expresses obligations as arising from contractual
agreements.
However, the close readings of the provisions of the civil code show that there are other sources
of obligations-like those arising from non-contractual relationships (from Art.2027-2178).
obligations arising from unlawful acts or obligation that arises from the causing of physical
injure or obligation arising from the causing of material damage (fromArt.2027-2161) and
finally, obligations arising from unjust enrichment (from Art,2162-2178).
In so far as an obligation arising from the law is concerned, it happens in situations when law
imposes obligations on persons to give or not to give, to do or not to do some acts recognized in
almost all-legal systems.
Obligation arising from the law is a unilateral obligation imposed on citizens or contracting
parties without their consent. It includes among other things
• Obligation to pay income taxes
• Obligation to render military services
• Obligations of creditors
• Obligation of debtors
• Obligations of families to their children, etc.
Chapter 3: Types of Obligations
Obligations can be classified based on the nature of activities, and the number of parties
legally bound by the obligation. Accordingly, they can be classified into:
1) Divisible obligation
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This is one whereby a party undertakes to perform its obligations by dividing into
parties. For instance, if A and B owed C 1,000 BIRR such parties to the obligation
perform or discharge the obligations by paying half (part) of the debt to C, which is 500
each.
2) Indivisible obligations
In this type of obligation, the performance of the obligation undertaken cannot be
divided into parts. Hence, in this type of obligation partial performance is impossible
given the conditions and circumstances of its formation, which does not allow the
performance of obligation by dividing into parts.
3) Positive obligation
This is a situation where a person's obligation is to do or to give some thing to another. It
requires an action from the debtor.
4) Negative obligation.
This is a situation where a person's obligation does not to do some thing or it refrains
from doing something. Such obligations are also called obligations not to do.Example,
company A may agree with company B in which company A under takes an obligation
not to produce or sell certain goods in the same market.
Based on the number of parties legally bound, obligations can be classified into
unilateral, bilateral, and multilateral obligations
.a) Unilateral obligation arises from contract in which two parties are participate.
However, only one of the parties is legally bound by the contract for the benefit of the
other contracting party. Example, donations
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b) Bilateral obligation arises from a contract entered into by two parties in which
these contracting parties are bound legally to each other on equal terms. Accordingly,
there are two promisors and two promises.
c) Multilateral obligation. This is a case where more than two persons undertake to
perform an obligation. Such obligations can be classified into three:
1) Simple joint obligation
2) Joint obligations
3) Several and joint obligations
1) Simple joint obligation
In this type's obligation, parties who are bound by such obligation are not jointly
liable for the total debts, but each debtor is liable for its own share with the exception
of Art 1917 of the Ethiopian civil code.
2) Joint obligations
It arises from the contractual obligation in which more than two parties participate
and debtors are jointly liable for the debt secured as a result of the obligation entered
into with the creditor or creditors.
3) Several and joint obligations
In this kinds obligations the co-debtors shall be jointly and severally liable unlike
joint obligation where the debtors are jointly obliged to undertake a given obligation,
in the several and joint obligation, the creditor may require all the debtors or one of
them to discharge the obligation in whole or in part.
Conclusion
A duty is what you owe to your fellow human as a fact of nature, and an obligation is what has
been imposed by contract or custom. Generally, one is "obliged," or "obligated," by agreement or
because of having received a benefit. If you take candy from a store, you have an obligation to
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pay for it. If an employer has agreed to pay you wages, you have an obligation to perform
services or produce products. An obligation is, essentially, a debt - something you are bound to
by agreement or as a function of fair exchange. The root of the word "oblige" means to "bind."
A duty is something that is legally or morally right. The root of the word "duty" is essentially the
same as "due," but as a whole, it is interpreted as being what is "due" from you as a human, when
born, to your fellow human. When you are driving, you owe a "duty" of care to others around
you not to operate your vehicle in a dangerous or harmful manner. You have a "duty" as a parent
to keep your children alive and guide them to a successful future .No one has to have given you
something or contracted with you for duty to exist. For obligation to exist, there needs to be some
form of contract.
References
• Gopal Srinivasan, Duties and Their Direction, Ethics, Vol. 120, No. 3 (April 2010). pp.
465-494
• Annemarie Devereux, should 'Duties' Play a Larger Role in Human Rights, UNSW
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•
Law Journal, and Volume 18(2) at pg. 464-484.
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Carleton Kemp Allen, Legal Duties, Yale Law Journal, Vol. 40, No. 3 (Jan., 1931), pp. 331-380.
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VD Mahajan, Jurisprudence, Eastern Book Company, 4th Ed., 2012.
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Paton G.W.: A Text book of Jurisprudence. (2nd ed.) at pg. 219.
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Gray J.C.: Nature and Sources of Law. pg. 18.
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Holland T.E.: The Elements of Jurisprudence (13th Ed., Indian Reprint 2010) at pg. 81.
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Austin, Lectures (Campbell's, ed. 1869) XVII, 412.
•
J Donnelly, "How are Rights and Duties Correlative" (1982) 16 Journal of Value Inquiry
287 at 292
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