Obligation: nature, sources and kinds, and solidary obligations
Jurisprudence · Unit V · Topic 23 of 24 · 5 min read
Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Meaning
The Roman definition, from Justinian’s Institutes: obligatio est juris vinculum quo necessitate adstringimur alicujus solvendae rei, an obligation is a bond of law by which we are bound by necessity to perform something. Salmond: an obligation is the vinculum juris, or bond of legal necessity, which binds together two or more determinate individuals. It is the correlative of a right in personam: the creditor has the right, the debtor the obligation.
Salmond’s features of an obligation:
- it is a proprietary right in personam, having economic value and forming part of the creditor’s estate (a personal right such as a husband’s right to consortium is not usually called an obligation);
- it is a relation between determinate persons, unlike rights in rem, which avail against the world;
- it is usually a positive duty (to pay, to deliver, to perform);
- it is the legal bond, not merely a moral duty.
Duty and obligation are not the same. Every obligation is a duty, but not every duty is an obligation: the duty not to trespass is owed to everyone and is not an obligation; the duty to pay a particular debt to a particular creditor is.
2. Sources (kinds) of obligation
Salmond classifies obligations by the facts that create them.
- Contractual obligations (ex contractu): created by agreement. The parties voluntarily bind themselves, and the law enforces the bond. The Indian Contract Act, 1872 governs them.
- Delictual obligations (ex delicto): arising from a tort or civil wrong. The obligation to pay damages for negligence or defamation. It arises against the will of the obligor.
- Quasi-contractual obligations (quasi ex contractu): arising neither from agreement nor from wrong, but imposed by law to prevent unjust enrichment. The Indian Contract Act calls them “certain relations resembling those created by contract” (sections 68 to 72): supply of necessaries to a person incompetent to contract (section 68), payment by an interested person of money due by another (section 69), the obligation of a person enjoying the benefit of a non-gratuitous act (section 70), the responsibility of a finder of goods (section 71), and money paid or a thing delivered by mistake or under coercion (section 72).
- Innominate obligations: a residuary class that fits none of the above, such as the obligations of a trustee to a beneficiary, obligations arising from judgments, and statutory obligations (to pay tax, to maintain a wife or parent).
The Roman law had a parallel fourfold division: obligations ex contractu, quasi ex contractu, ex delicto and quasi ex delicto.
3. Solidary obligations
Ordinarily an obligation binds one debtor to one creditor. A solidary obligation is one in which two or more debtors owe the same thing to the same creditor. The creditor is entitled to one performance only, but may be able to demand it from any of the debtors. Salmond distinguishes three kinds.
- Several obligations. Each debtor is liable separately for the whole, by distinct causes of action. A creditor who holds separate guarantees from A and B for the same debt may sue either. Judgment against one is no bar to an action against the other, though payment by one discharges both to that extent.
- Joint obligations. The debtors are bound together by one cause of action. At common law all had to be sued together, and the release of one released all; judgment against one was a bar to proceeding against the rest.
- Joint and several obligations. The debtors are bound both jointly and individually. The creditor may sue all together, or any one or more of them for the whole. Joint tortfeasors are the standard example: each is liable for the whole damage.
Indian law. The Indian Contract Act does not follow the English rules on joint obligations. Under section 43, when two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of the joint promisors to perform the whole promise. A joint promisor who is compelled to perform may claim contribution from the others. Under section 44, the release of one joint promisor does not discharge the others or free him from responsibility to them. Indian law thus makes every joint promise, in effect, joint and several. Section 42 lays down that, unless a contrary intention appears, joint promisors must jointly fulfil the promise during their lives.
Contribution. As between the debtors themselves, the one who pays more than his share is entitled to contribution from the others, so that the burden is finally shared. Among joint tortfeasors the right of contribution exists in English law by statute; Indian courts apply the principle of equity and good conscience.
How this is examined
As a 10-mark essay: “What is meant by obligation? Explain different kinds of obligations” (June 2025, Q.5(a)). As a note: “Solidary obligation” (January 2026, Q.9(a), 10 marks). Give the Roman and Salmond definitions, the features, the four sources with Indian sections for quasi-contract, and the three kinds of solidary obligation with sections 42 to 44 of the Contract Act.
Now try the real questions: Jurisprudence past question papers.