TRANSFER OF OBLIGATIONS

We have seen that the law of obligations is part of the law of things. If, then, an obligation is to be seen as a form of property, one might think that it would be possible for the creditor to transfer the right to performance to someone else.

It does not appear, however, that assignation was permitted in early or classical Roman law. The “legal tie” of the obligation was seen as binding the two parties to each other personally. One reason for this might be that enforcement of the obligation might be against the debtor’s person, rather than his property, through enslavement (see Chapter 10). It might have been thought unfair potentially to substitute a lenient creditor, with whom the debtor chose to contract, with a harsh creditor.

Commerce, however, demands that the value of a person’s assets be realis­able, and there are many instances in which it would be desirable to transfer the right to performance of an obligation. One device that was used to avoid the non-recognition of assignation was novation (i.e. a new obligation being substituted for the old), with a new creditor being substituted for the old creditor. However, as this was a new obligation, the involvement of the debtor would be required.

An alternative was to enter into an arrangement with the “assignee” whereby he was authorised to sue the debtor in his own name and keep what he received. This arrangement was known as procuratio in rem suam. However, it had the disadvantage that the “assignor” remained in law the creditor and could revoke the authority of the “assignee” at any time before the case had passed from the consideration of the praetor.

As the law developed, steps were taken to protect the situation of the assignee in a procuratio in rem suam. The process was completed by the time ofJustinian, and an action was given to an assignee to enforce the obligation if it was clear that the parties had intended to transfer the right to enforce­ment. The assignee was then able to sue in his own right.