Discussion About The Duty In Civil Law

The relation between the obligation and the duty is always a complicated theory in civil law which has brought about too much argument among scholars. In Roman law, the obligation and the duty were the same. While in ancient Germanic law, they were separated from each other. It meant that the obligation was optional as well as the duty was compulsory. In civil law, they are also separated from each other. The duty is a security for the achievement of the obligation not in legislation but in opinion. In civil law code, there is not expression of the duty. The duty of damages is always regarded as the obligation of damages. In fact, the duty is only a kind of the expression of the compulsory right derived from the court. In the domestic theory for the civil law, the duty is relatively separated. The general scholars think the duty is the consequence which the debtor must burden for the non-performance of the obligation. There are rules for the burden of duty in details in the General Principle of Civil Law. On the nature of the duty, there is no unique and general opinion. The expression such as security and compulsoriness is due to the function of the system of the duty. The burden of the duty means that the debtor must afford something such as money or do something for the creditor. The burden of the duty is substitutive for the obligation of the debtor in the original relations such as the contract relation. The aim to burden the duty is to afford a kind of remedy for the broken right of the creditor. According to the different function, the system of the duty should be divided into two parts. They are the duty for compensation as well as the duty for security.