A General Introduction To The Natural Obligation

A natural obligation may be defined as an obligation that does not give an action to enforce it, but once the praestare is made, it is recognized as a valid praestare by the law, and excludes condictio indebiti and repetitio solution. This institution, which derived from the old Roman law according to the common opinions, can still be found not only in the scholar's books and articles, but also in the decisions of the court and the civil code of some countries nowadays.The following pages contain an attempt to state the main cases which are recognized as a typical natural obligation, and the chief purpose of the writer has been to set out the established or accepted doctrines. So the major method which the writer used in his thesis can be found as a typologie and a comparative method. The writer also limited his discussion in the continental legal system, among which the French civil law, the German civil law, the Japanese civil law and the Chinese Taiwan civil law are considered representative.This thesis has been divided into three parts. Chapter 1 concerns some general introduction to the natural obligation, which includes as following, the natural obligation of the Roman law (Section 1), the definition of the natural obligation (Section 2), arguments on the practical benefits of the natural obligation (Section 3), and the effects of the natural obligation (Section 4).In Section 1, the writer tried to introduce the "ius gentium" theory, which was held by those who believed that the natural obligation existed in the ius gentium in the Roman law. Since the ius gentium is, however, not so distinct from the ius naturale, the writer prefer to the conclusion that both the ius gentium and the ius naturale can explain the origin of the natural obligation.As far as the definition of the natural obligation is concerned, which was discussed in Section 2, the writer was inclined to define it as an obligation which has Bdfugnis zum Behalten der Leistung without Befugnis zur Klage, instead of the traditional one.In Section 3, the writer didn't agree with those opinions which denied the institute of natural obligation has practical effect to the modern laws. On the contrary, the concept of natural obligation is useful to understand the imperfect obligations which lost some Befugnis. Although the natural obligation is unenforceable, it still has a restricted effect and validity.Chapter 2 and Chapter 3 refer to some concrete cases which are recognized as natural obligation by the courts and scholars of different countries. What discussed in Chapter 2 is organized according to the standard that all the so-called natural obligations derive from some kind of legal obligations which were perfectly valid in law. Such cases include the obligations extinguished because of praescriptio estintiva, (Section 1), praestare ob iniustam causam and condictio ob iniustam causam (Section 2), gambling debt (Section 3), the obligation still surviving even that the creditor does lose his case (Section 4).Almost all scholars consider the obligations as a typical natural obligation when the action is barred by praescriptio estintiva, so do the writer on the same topic. But different scholars from different countries, such as France, Germany, and Japan, have given their different explanations on the question. The different doctrines have been discussed in Section 1.Still someone thought that praestare ob iniustam causam and condictio ob iniustam causam, and gambling debt are kinds of natural obligations. The writer sticked to believe there was no any kind of obligations under such circumstances, not mention to the natural obligation, which is a kind of legal obligation.When it comes to this case that obligation still surviving even that the creditor does lose his case, the obligation is a kind of natural obligation, because the verdict of the courts couldn't deny an obligation, but give the debtor an Einreden.The cases analyzed in Chapter 3 are based on the ground that they are imperfectly valid in law when they came into being. Such examples include sittliche Pjlichten (Section 1), obligations void for informality or incapacity (Section 2), and obligation with an agreement that the creditor can't sue the debtor (Section 3).When considering a praestare, which is based on the sittliche Pflichten, as a natural obligation, it is difficult to explain why it can not be looked as a donation. Butat least it is useful to do so in France and Germany, because there are many restrictions subject to their civil codes.A debtor performed an obligation, which is void for informality or incapacity, it shouldn't be thought as a donation, but a performance of a natural obligation.If the creditor and the debtor came to an agreement that the creditor couldn't sue the debtor, such an obligation was also a natural obligation, because it was their rights for the parties to conclude such agreement.Inevitably, because we have not previously thought seriously about the natural obligation, this thesis must fight battles on several fronts, and as such it cannot be the end, but only the beginning of the discussion. The writer will appreciate any kinds of criticism, and consider that as the final purpose of his aim to write this thesis.