Natural obligations : a comparative study

Abstract

The aim of this thesis is to undertake an in depth study of the concept of natural obligations, in the light of the developments and improvements brought to the said concept, since the Roman law period. Throughout the course of the thesis, a comparative continental study of the notion of natural obligations, will be carried out. This comparative study will prove useful in identifying the substantive meaning of the concept, as well as, in providing relevant material for the treatment of local case law. In my point of view, the Maltese civil code does not treat the subject of natural obligations, in a satisfactory manner, and therefore, in deciding questions of natural obligations, the Maltese courts might make reference to the doctrines established or to the jurisprudence delivered under some foreign law, preferably to a law, which might be said to have a Roman law basis, just as the Maltese civil code. For comparative purposes, the two civil codes, which may be said to have been based on Roman law, are the 1865 Italian civil code, and the current French civil code. Therefore, throughout the course of this thesis, most of the comparative references, will be made in respect of these two codes. What may easily emerge, following a reading of this thesis, is that, the current trend is the adoption of the contemporary doctrine of natural obligations, which doctrine tends to include moral and social duties, within the concept of natural obligations, in contrast to the more archaic, classical doctrine, which doctrine categorically excluded such an inclusion. According to the classical doctrine, law and morality were two separate concepts, and as such had to be kept distinct. In my opinion, the adoption of the contemporary doctrine, marks an improvement, since through the penetration of morality into the field of positive law, positive law tends to be more humane and equitable in meeting the peoples' needs. The obvious consequence of the adoption of the contemporary doctrine, would be that as many natural obligations might be held to arise, depending on the various moral duties as are claimed to have been fulfilled. In this case, it would be up to the particular court called to decide upon an issue of natural obligations, to determine, in the light of the various criteria developed by continental jurisprudence, (which criteria will be discussed in the course of the thesis) whether, such moral duties actually amount to natural obligations. Two important key issues, which will be discussed in thecourse of this thesis, are the following. One important, central aspect of the notion of natural obligations, refers to the type of intentional element, which would be required for the proper fulfillment of such an obligation. This aspect will be studied by taking into consideration the Maltese jurisprudence delivered on this account, and also by comparing this jurisprudence with the relative counterpart under continental law. The findings of the two mentioned studies may be described as follows. Hence, it will be observed, that Maltese jurisprudence, in contrast to the interpretations made to the 1865 Italian civil code, and to the current French civil code, but similarly to the interpretations made to the 1942 Italian civil code, has, in the subject matter of intention, chosen to adhere to the teachings of Roman law. Roman law advocated a liberal (without any external coercion) and an unconscious, (without the knowledge that one is actually fulfilling a natural obligation) type of intention, for the proper fulfillment of a natural obligation, which fulfillment necessarily implied the soluti retentio effect. Another important issue, central to the understanding of the notion of a natural obligation, which issue will be dealt in detail in this thesis, is the type of relationship, which has been held to subsist by Maltese jurisprudence, between natural obligations on the one hand, and illegal contracts, on the other hand. Usury may be described as a typical example of an illegal contract. This issue will once again be studied from a comparative point of view, focusing particularly on continental law. It will be seen, that in trying to delineate a relationship between natural obligations, and illegal contracts, the Maltese courts have not always been consistent in their judgments. To avoid this inconsistency, it would be very useful if the Maltese courts, when delivering such kind of judgments, were to follow some established rule or policy, and were to stick to the same rule whenever, the same situation seems to arise. Could the lack of clearly defined legislation concerning the notion of natural obligations, really be said to create a handicap, in the Maltese civil law jurisdiction? After having read throughout this thesis, one may easily come up with this question, which question, I have hopefully tried to address and to answer, in the concluding part of this thesis.