Civil obligations vs. Voluntary civil obligations

Civil obligations vs. Voluntary civil obligations-illustrate & explain

When we look at this assertion we get two chief ideas. They are the Law of Contract and Civil obligations. Obligations are actions that a person is required to take, and due to non-fulfilment it may incur penalties like different legal actions being taken. Civil obligations would be detailed further in the forthcoming discussion. Here as we are discussing about the law of contract and civil obligations so we will be discussing about persons being obliged to one another in performing different actions. Firstly we would discuss different elements and contents of the Law of contract such that we have knowledge of its ambit. Thereafter, we would give a brief on the area of Law of obligations. Finally, it would be examined about the common and non concurring aspects of both the areas to judge whether the statement is true to the utmost.

Generally speaking, obligations create agreements. Nevertheless, all agreements are not enforceable by law, as for example: “A boy friend promising his girlfriend to take her to the cinema” cannot be enforced by law. As Sen and Mitra1 explain there are some essential elements to form a contract or to make an agreement enforceable by law. The elements are:

1. Offer and Acceptance

2. Intention to create legal relationship

3. Lawful consideration

4. Capacity of Parties

5. Free Consent

6. Legality of the Object

7. The agreement should also have certainty, possibility of performance to be enforceable by law. The agreement should also not be void.

The elements mentioned above must all be present. If any of them is absent the agreement doesn’t become a contract and thus doesn’t become enforceable by law. Thus we can say that every contract is an agreement but all agreements are not contracts. The law of contract deals with these agreements and seeks to give justice to the parties involved in those agreements.

Contract law allows either party to a valid contract to utilize the courts to enforce the contract. For instance, if one individual paints a house in reliance on another individual’s promise to pay for the work, then the court may enforce the other individual to pay for the work based upon the agreement. Also, in contract law, courts may utilize the doctrine of promissory estoppels to enforce a contract that may lack sufficient consideration. Courts have discretion to use this doctrine when one party to a contract has detrimentally relied on the other party’s promise to do something.[1]

Most exchanges and interactions in the marketplace rely on the theory of contract law. Because contract law provides remedies when one party fails to complete his promise to the other party, these legally binding agreements that occur in the marketplace create enforceable obligations on both parties. Therefore, it places an importance on enforceable agreements between individuals that would otherwise be insignificant. In other words, without contract law, people can enter into contracts with others and fail to complete their contract obligations without any consequences.2

There are different types of contracts and all these contracts are created through voluntarily created civil obligations[2]. They are:

· Adhesion Contracts: Adhesion contracts are those contracts which are drafted by the stronger party. This contract is also called “take it or leave it contract”. The party which has a bargaining advantage leaves the other party with no choice other than to accept or to reject the contract. This contract usually happens in monopolistic markets where one party always has a higher bargaining advantage in fact a very high bargaining advantage. This contract came into being as in the business world it is not always possible to negotiate with everything.

· Aleatory contracts: This is a mutual agreement which comes into being only with the occurrence of an unexpected event or an accident or a natural calamity. In this type of contract both the parties takes risk. As for example a car insurance. The insurance policy holder will not get any benefits until and unless an accident happens or the car is badly damaged.

· Bilateral and unilateral contracts: Bilateral contracts are those contracts where both the parties are involved in the contracts. Both the parties are obliged to one another for performing acts. It is also called a two sided contract because of the two way promises made by the parties involved in the contract.

Unilateral contract is a contract where the promise is made by only one party. Unilateral contract consists of an offeror and the offeree. The offeror makes a promise to the offeree to execute a certain obligation or action if the offeree performs the requested action. Here in this contract the offeror is only bound to the court of law. The offeree is not bound to the court of law even if he fails to execute the requested action because he doesn’t promise anything.

· Express Contracts: Express contracts are those contracts where the different terms of the contact are written in a document or expressed orally.

· Implied contract: It is the opposite of an express contract. In this type of contract there is no written or oral term of the contract. As for example: A patient going to the doctor, the patient knows that he or she is going for a treatment to a doctor and for the treatment he or she is going to pay money to the doctor. The doctor also knows that he will be giving treatment to the patient but he never mentions any terms to the patient. The patient can sue the doctor for any wrong treatment which may bring harm to the patient. This is called an implied contract.

· Unconscionable contract: These contracts are basically unfair contracts and also undue. These contracts favour only one party. These contracts generally create the oppressor and the oppressed relationship. The court of law has found these contracts are a result of exploitation of impoverished and illiterate consumers.

· Void and Voidable contracts: A void contract implies that the parties involved in the Contract are not liable to legal obligations, meaning that the parties are not legally bound with reference to that contract. A void contract means that the contract ceased to exist anymore and that there is no contract existing between the parties anymore.

A voidable contract unlike a void contract is a valid contract. In a voidable contract only one party is bound to the contract, the other party is not bound. The unbound party can repudiate or terminate the contract any time, and then the contract is void.

Here in these different types of contract we see that one party is always obliged to the other party. In fact voluntarily created obligations create contracts and those are secured by the laws of contract.

An obligation is a juridical necessity to give, do or not to do. Civil obligation is one of the three tiers of law of obligation apart from natural obligations and moral obligations. Civil obligation is one which binds in law, vinculum juris, and which may be enforced in a court of justice. It covers Contract Law, Delict Law, Quasi-contract Law and Quasi-delict Law[3]. The law of obligations aims to organize and regulate legal relations between persons under obligation to fore fill a duty under ‘different branches’.

Every obligation has four essential requisites otherwise known as the elements of obligation. They are:

1. A passive subject (called debtor or obligor): the person who is bound to the fulfillment of the obligation.

2. An active subject (called creditor or obligee): the person who is entitled to demand the fulfillment of the obligation.

3. Object or prestation: subject matter of the obligation

4. A juridical or legal tie: the vinculum; the efficient cause that binds or connects the parties.

Contract law has been discussed in the first part of the essay so I would give an insight on the other areas of Law of Obligation.

A delict is a legal wrong. This term is used in civil law to refer to actions which cause injuries to other people and result in a subsequent liability for the person who committed the action. In civil law, demonstrating that a delict occurred and showing who is responsible is necessary to collect damages or take other actions. Delicts may also be known as wrongs, offenses, or torts. In all cases, the actions of one person lead to an injury sustained by another; the person who causes the injury is considered liable under the law whether or not the harm was intended.

Civil law distinguishes between delicts and quasi-delicts. A quasi-delict is a wrong which occurs unintentionally, as a result of something like negligence, in contrast with a true delict, which requires intentional action. Thus, someone who commits murder has committed a delict, while manslaughter would be an example of a quasi-delict.

A quasi-contract is not a real contract. Salmond defines quasi contracts: “there are certain obligations which are not in truth contractual in the sense of resting on agreement, but which the law treats as if they were”. Quasi contracts are also known as “constructive contracts” or “certain relations resembling those created by contracts”. It is important to remember that it is imposed by law. It is not created by the operation of the contract.

Therefore it may be righteous to say that the Law of obligations does not depend entirely on the Law of contract. The question is whether the law of contract covers only obligations

Contract law can be classified, as is habitual in civil law systems, as part of a general law of obligations, along with tort, unjust enrichment, and restitution. Therefore it means that the ambit of law of contract is not restricted within the bounds of law of obligations rather extended to merge with Tort, unjust enrichment and restitution.

How is contract law related with Tort can be seen from the definition of tortuous interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when a person intentionally damages the plaintiff‘s contractual or other business relationships.

In law, unjust enrichment is where one person is unjustly or by chance enriched at the expense of another, and an obligation to make restitution arises, regardless of liability for wrongdoing.[4] A common example is when a party contracts to provide a service, but the contract is terminated prematurely due to a breach, and the contractor unjustly receives no compensation for partial services rendered.

The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery[5]. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court orders restitution it orders the defendant to give up his gains to the claimant. When a court orders compensation it orders the defendant to compensate the claimant for his or her loss. However, it is to be remembered that such “obligation” is not part of Law of obligation rather a part of law of gains-based recovery.

In epilogue it may be inferred that although the Law of contract significantly contains the Law of obligation, it is not constrained within it. The law of obligations is a huge arena containing laws outside Law of contract. Similarly, Law of contract houses other aspects of law different to that of law of obligations.


Birks, P. (2005). Unjust Enrichment. Clarendon Law Series. New York: Oxford University Press.

Bowy. Mod. C. L. c. 43, p. 265.

Sen, A. K. and Mitra, J.K.(2011)Commercial Law including company law and Industrial Law: World Press,p.14

Dukeminier, J. and . Krier, J E.(2002) Property, Fifth Edition, Aspen Law & Business (New York,), pp. 31-36.

Huntington, M.’ Importance of Contract Law’ available from:- [Accessed 14th February 2013]

Justinian. “Institute.” Trans. Moyle,J.B.(1889) Oxford: Oxford University Press,p. 132

Salmond, J. W. and Williams, J. (1945) Principles of the Law of Contracts. The Carswell Company, limited.

‘Types of Contracts’ available from:- . [Accessed 14th February 2013]

[1] Huntington, M.’ Importance of Contract Law’ available from:- [Accessed 14th February 2013]

[2] ‘Types of Conntracts’ available from:- . [Accessed 14th February 2013]

[3] Justinian. “Institute.” Trans. Moyle,J.B. (Oxford: Oxford University Press. 1889) at 132

[4] Peter, B. (2005). ‘Unjust Enrichment’. Clarendon Law Series. New York: Oxford University Press.

[5] Peter, B. (2005) ’Unjust Enrichment’ Clarendon Law Series. New York: Oxford University Press.