and power over the debtor’s person (and in the case of subsequent insolvency this vinculum iuris was extended to include the debtor’s entire property as well). In order to liberate himself from this bond the debtor had, either, or both, to perform and deliver what was due to the creditor.69 However, if the debtor defaulted the debtor risked losing his status of sui iuris, whereby he would become alieni iuris, and in this capacity both become subject to the creditor’s legal power and eventually the legal equivalent of a thing (res), in which capacity the creditor was the object of the creditor’s dominium, part of the creditor’s property, a slave.70 In Roman law the debtor’s status as obligatus and the creditor’s power to obligare, his obligatio or vinculum, entails that the debtor is subject to, while the creditor is entitled to, anactio in personam.71 (This is the actio according to which the defendant is sued to “dare, facere, praestare oportere” [to give, to do, or to perform something].)72 Accordingly, to be subject to an actio in personam, to be obligatus, is not equivalent to the defendant’s subjection to a legal duty of the modern type. Hence, the ability to obligare by Roman law is not identical with the creditor’s universal power to subject persons to legal duties of the modern type (see, for example, property law).73 The origins of the modern conception of obligation as a universal rather than a specific claim is to be found in the fact that modern jurisprudence has over-interpreted and over-constructed Roman law. Hereby the Roman law of obligations is misconstrued, by means of which natural law theory, p a r t v i , c h a p t e r 2 400 69 Hägerström,“Nehrman-Ehrenstråles uppfattning,” pp. 581-583; Recht, Pflicht etc, pp. 24-27. 70 Hägerström, “Nehrman-Ehrenstråles uppfattning,” p. 582; Recht, Pflicht etc, pp. 2526. 71 Hägerström,“Nehrman-Ehrenstråles uppfattning,” pp. 583-585 and 612; Recht, Pflicht etc, pp. 27-29. 72 Encyclopedic Dictionary of Roman Law, Berger, ed., Actiones in personam. 73 Hägerström,“Nehrman-Ehrenstråles uppfattning,” pp. 585 and 612; Recht, Pflicht etc, pp. 28-29 and 62-63.The term originally seems to refer to the creditor’s right to literally shackle the debtor, as well as the symbolic shackles that the debtor or defendant was bound by according to law. Encyclopedic Dictionary of Roman Law, Berger, ed., Obligare, Obligatio,Vincula, and Vinculum iuris.
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