Volume 03 Issue 03-2023
17
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
03
I
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03
Pages:
17-24
SJIF
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FACTOR
(2021:
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(2023:
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
In the article, based on looking at the past and future of the law of obligations, which is an important institution of
civil law, along with the explanation of various views on this matter, its emergence is evaluated from a historical
approach. As well as the rules of the ancient contractual obligations of the Uzbek people, a comparative analysis of
the concept of an obligation exists in the civil legislation of national and foreign countries. Based on the analysis,
suggestions will be put forward to improve the norms of the Civil Code of the Republic of Uzbekistan on the concept
of obligation.
KEYWORDS
Obligation, civil law, civil legal relationship, the law of obligation, contract, Avesta, creditor, debtor, commonality of
interests.
INTRODUCTION
Look at the glorious past of the ancestors; it opens a
way to the future of the generations.
Everyone communicates with each other in their daily
life. Their relationship, which is formed based on these
communications, continues from early morning until
they go to sleep in the evening. In the course of these
relations, people have certain rights and must fulfill
certain obligations.
Obligations can be found in different forms in our life.
For example, obligations that arise between a state
and an individual, parents and children, grandparents
and grandchildren, husband and wife, teacher and
Research Article
OBLIGATION LAW: PAST AND FUTURE
Submission Date:
March 14, 2023,
Accepted Date:
March 19, 2023,
Published Date:
March 24, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue03-03
D. B. Rakhimov
Professor Of The Center For The Improvement Of Lawyers' Qualifications Under The Ministry Of Justice Of The
Republic Of Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 03-2023
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Publisher:
Oscar Publishing Services
Servi
student, friends, neighbors. The scope of such
obligations is extremely wide.
THE MAIN RESULTS AND FINDINGS
If we want to explain how important the role of
obligations is in the process of marriage, quote the
following scriptures regarding the obligations
between a parent and a child: "If one or both of them
became old in your presence, oh child, don't say "uff"
to them at all. Do not tear them apart; spread your
wings of mercy on them.
In this article, we will look at the past and future role of
the law of obligation, which is an important institution
of civil law.
Obligation law regulates the most important and broad
field of property relations in our society with its rules
of a civil legal nature [1].
Business activities are carried out through obligation:
goods are sold and bought, the property is leased,
production facilities and residential buildings are built,
passengers and goods are transported by various
means of transport, services are provided, loans are
given, accounting is carried out, a person himself and
his property are insured, joint business activities are
carried out, the results of intellectual activity are used,
the life, health and property of citizens are protected,
etc. [2].
The right of obligation did not appear today, although
there is no consensus on its emergence, it has become
a "tradition" to connect it directly with Roman law.
In our opinion, the idea of directly connecting the
writings on the law of obligation with Roman law is not
very correct, because even before that there were
legal sources such as "Avesta".
It has been 3000 еars since the creation of our most
respected, ancient manuscript "Avesta". This rare
book is the spiritual and historical legacy of our
ancestors who lived on this land between two rivers
thirty centuries ago [3].
According to the Eastern theory, the homeland of
"Avesta" is Khorezm oasis [4].
The name "Avesta" itself is translated by most
commentators as "law" (from the word "upasta"
meaning base, legislation) and indicates that it was
accepted by Zoroastrians as the main source of law.
Although all parts of the "Avesta" contain socio-
political and legal ideas [5], Vandidod is the true legal
compendium of the book [6].
In "Avesto" it is mentioned separately the institution of
contractual obligations of the law of obligation. For
example, in one of the oldest hymns of "Avesta" - Mihr
Yasht (hymn of Mithras), the prophet of the supreme
god Ahura Mazda, Spitam addressing Zoroastrian,
says:
Wicked destroys the country,
He doesn't keep his word.
He is worse than a hundred fools
He destroys the pious.
You are given the contract
Be faithful to it, Spitam
And to the liars
And to those faithful to the religion.
After all, the word contract
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Oscar Publishing Services
Servi
Belongs to both
Even to liars, and
To the honest ones.
"Avesto" also includes norms that regulate binding
relationships in contracts and the law and payment of
damages [6].
Other types of obligations are mentioned in the
contract, including, firstly, to be rich, secondly, to
marry and thirdly, to be wise ("Vandidod", IY fargard,
paragraphs 126-30) [7].
In our opinion, it is time to give up views such as strictly
linking the creation of the law of contracts and
obligations directly to Roman law.
In this regard, the civilist scholar V.R. Topildiev's
"Roman jurists used the concepts related to civilistics
(civil law), i.e. ... contracts, the law of obligations, ...
and most expressions and words used in other civil law
and all these are fully used in the civil law of the
Republic of Uzbekistan and other areas of law. Of
course, while citing the opinion that these concepts
were created 25 centuries ago [8], we would like to
draw your attention to the phrase "these concepts
were created 25 centuries ago".
As noted, the concepts of the right of obligation in
Roman law were created 25 centuries ago, while the
"Avesta" was created 5 centuries before it, more
precisely, 30 centuries ago.
We mentioned that "Avesta" consists of a complex of
"laws".
The 4th chapter "I a" of "Avesta" is devoted to
"Contracts and crimes" and has six variations. The first
contract is reinforced with words; the second - with a
handshake; the third is to pledge the sheep; the fourth
is to pledge the ox; the fifth is to put a person as a
hostage; the sixth - it is recognized that there are
contracts related to pledging fertile land [9].
In contrast to Roman law, the fulfillment of the
obligations specified in the 6 contracts recorded in the
"Avesta", created in the territory of Uzbekistan almost
3000 еars ago, was strengthened by giving a word. It
can be seen that it is built based on mutual trust.
Speaking about aspects related to the regulation of
relations related to the law of obligations in the East
and the West, it should be noted that the provisions of
the law of obligations on contracts are related to
customs in Roman law, oral contracts expressed in the
form of (conditional) and written (literal) contracts.
At first, creditors had home account books, in which it
was written who owed and how much. The debtor also
kept some kind of note for himself. But since these
records were one-sided, there were sometimes
disagreements and it was difficult to prove their
authenticity.
In the East, especially in Uzbekistan, the rules
governing contractual relations have become strict.
For example, documents relating to contractual
obligations dating back to the beginning of the 7th
century, which represent the strict rules of the
contract, can be found in the "Mount Mugh Sogd
Archive" complex [10] [11] [12] [13].
The provisions of the ancient contractual obligations of
the Uzbek people in Sogdian legal documents can be
understood from the opinion that "According to the
contract, no one else will be allowed to enter this land,
and the buyers undertake to use it peacefully and
carelessly" [ 14]. Here it is worth noting that
"faithfulness to a written or oral contract was
Volume 03 Issue 03-2023
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Publisher:
Oscar Publishing Services
Servi
considered a particularly valuable feature among the
peoples of Central Asia" [7].
Looking at today, it is worth noting that there are
different views on the right of obligation. In particular,
according to G.F. Shershenevich's recognition, in civil
relations, an obligation is created for the sake of
property interest [15].
M.M. Agarkov on the types of actions that make up the
essence of the right of obligation: "1) transfer of the
object by the debtor as the property of the creditor; 2)
giving from the debtor of a specific item to the
creditor; 3) giving the creditor the right to claim
material right or obligation without property right or
obligation by the debtor; 4) describes the division into
obligations aimed at providing some service or work"
[16].
Although the essence of the right of obligation is
interpreted differently by legal scholars, these
opinions lead to a single conclusion that it is
manifested in the fact that it is built based on interest.
In a word, the benefit expected from social relations,
arising as a result of need is regulated by the right of
obligation.
"Gratefulness",
"adaptability"
and
"adaptation to the environment" specific to a person
in satisfying their needs are norms specific to the
content of individual interests.
In the law of obligation, it is necessary to ensure the
"common interests" of the subjects of the obligation.
If we talk about the principle of "Combination of
interests" in the law of obligations, it should be noted
that it stipulates that the interests of "creditor - debtor
- third parties" should be equal.
In our opinion, only the interest of the creditor is
secured in the obligation relationship. For example,
according to the contract of sale, the creditor's interest
is guaranteed by the payment of the money due, but
the debtor's interest is not guaranteed due to the
quality of the purchased item. Also, the rights of "third
parties" are not guaranteed in the law of obligation.
The use of recourse rights by third parties who have
fulfilled their obligations against an economically
insolvent debtor is ineffective.
In contractual obligations, the interests of the creditor,
debtor and third parties must be equally guaranteed.
As we try to understand how necessary " a
combination of interests" is in the law of obligations, it
is important to first understand the concept of
obligation.
There is no exact opinion among legal scholars in
explaining the concept of obligation. In particular, G. F.
Shershenevich states that obligation means a legal
relationship that represents the acquisition of the right
of one person to perform a certain action [15].
Kh.Rakhmonkulov states that obligation is a property
relationship regulated by the norms of civil law,
therefore it has the form of a legal relationship. Two
parties participate in such relations, one of them is
called the debtor and the other is called the creditor.
The debtor is obliged to perform certain actions in
favor of the creditor, and the creditor has the right to
demand the performance of this action [2].
Statement of obligation in this way is also observed in
other legal pieces of literature [17] [18] [19] [20] [21].
The analysis of opinions shows that the general
concept of obligation expresses the implementation of
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a certain action or the refraining from its
implementation.
According to Article 234 of the Civil Code of the
Republic of Uzbekistan, an obligation is a civil legal
relationship, based on which one person (the debtor)
must perform a certain action for the benefit of
another person (the creditor), such as transfer of
property, the performance of work, servicing, paying
money, etc., or refrain from certain actions, and the
creditor - has the right to demand the debtor to fulfill
his obligations.
Also, such description is in Article 268 of the Civil Code
of the Republic of Kazakhstan, based on the obligation,
one person (the debtor) performs a certain action in
favor of another person (the creditor), such as transfer
of property, the performance of work, payment of
money, etc. or from a certain action will be obliged to
defend himself, and the creditor will have the right to
demand the fulfillment of his obligations from the
debtor. The creditor is obliged to accept the
performance from the debtor.
In Article 307 of the Civil Code of the Russian
Federation, an obligation is one of the common types
of civil law relations. It is expressed in the form of the
transfer of goods and material assets from one person
to another person.
This definition of the obligation is also stated in Article
509 of the Civil Code of Ukraine and Article 296 of the
Civil Code of the Kyrgyz Republic.
According to paragraph 241 of the German Civil Code,
"The creditor has the right to demand the performance
of the obligation from the debtor. It is noted that the
fulfillment of the obligation may also consist of the
implementation of an action.
Although there is no specific concept of obligation in
the French Civil Code, the obligation is expressed in the
form of a legal relationship between people, to
perform an action or refrain from acting as a creditor
who is another person [22].
Although the legal structure of the Swiss Obligation
Act is based on the concept of obligation, it does not
contain the concept of obligation.
Although the law of most states of England and
America has not given a concept of obligation with a
normative nature in their legislation or precedent law,
in the legislation of some states there is a norm
regarding its concept. For example, Article 1427 of the
Civil Code of the State of California (1872) states that
"A liability is a legal obligation of a person to do
something or not to do something" [23].
It should be noted that the obligation of the debtor to
perform a certain action in favor of the creditor or to
protect himself from a certain action, and the right of
the creditor to demand the performance of his
obligations from the debtor is expressed.
In the expression of the concept of obligation, a point
of view has been formed, showing the obligation on
the part of the debtor, and the right on the part of the
creditor, and assuming that the obligation and the
right are exchanged between the debtor and the
creditor.
In our opinion, this point of view is not very correct,
because the exchange of creditor and debtor does not
always happen in the obligation.
In this regard, it would be appropriate to quote the
following opinions of legal scholars: "Each of the
parties to an obligation can be both a creditor and a
debtor at the same time (for example, building a house
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according to the order of a citizen), but there are
obligations in which one part is always a creditor, and
the other is a debtor, and their positions never change
(for example, when one person lends money to
another) [24].
At the same time, the concept given to obligation in
part 1 of Article 234 of the Civil Code of the Republic of
Uzbekistan represents the meaning of unilateral
obligation.
According to a unilateral obligation, if one party has the
right to demand, the other party undertakes the
obligation to fulfill this demand. However, in addition
to unilateral obligations, there are also bilateral or
multilateral obligations.
In bilateral obligations, both parties jointly participate
in the implementation of the obligation, and both
parties assume the obligation together with having the
appropriate right. The majority of civil legal relations
are bilateral obligations.
In our opinion, the concept of obligation cannot be
fully explained with the conclusion that in the concept
of obligation, the rights on the one hand, and the
obligation on the other hand, are constantly
alternated. This situation does not fully comply with
the requirements of legal documents.
In all contracts from Article 386 to Article 975 of the
Civil Code of the Republic of Uzbekistan, the norms
expressing
unilateral
obligations
or
bilateral
obligations are exempted only from the obligations.
According to them, one party can perform certain
actions, i.e. transfer property, perform work, provide
services, etc. undertakes the obligation to perform,
and the other party undertakes the obligation to pay
the fee (except in cases where the law makes an
exception).
In most cases, the existence of obligations on both
sides is reflected. The concepts expressed in separate
types of these obligations should be reflected in the
concept of obligation.
Also, in Article 234 of the Civil Code of the Republic of
Uzbekistan, the concept of obligation is limited to
expressing the provisions of contractual obligations,
while according to the second part of this article, it is
stated that obligations arising from the contract, the
result of damage and other grounds.
In our opinion, in understanding the obligation, the
rules regarding all situations that give rise to the
obligations specified in the second part of Article 234
of the Civil Code of the Republic of Uzbekistan should
be reflected.
Based on the mentioned circumstances, the first part
of Article 234 of the Civil Code of the Republic of
Uzbekistan should be reworded as follows: an
obligation is a civil legal relationship, according to
which one party performs certain actions for the
benefit of the other party, the other party and
undertakes to accept the results of these actions and
to pay for them, or one party must compensate the
damage caused to the other party as a result of its
illegal action or inaction.
Such an understanding of the right of obligation and its
application in practice protects the legal interest of the
subjects of the obligation, along with the formation of
a deeper understanding of their rights and a sense of
responsibility. This situation gives rise to beneficial
legal relations between the obliged parties. As a result,
the "common interest" of all those participating in the
fulfillment of the obligations is ensured.
The perspective of the obligation law can be seen in the
provision of "common interests" of all parties involved
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in the obligation relationship. "Community of
interests" benefits the subjects of civil law, as well as
the state and society, and creates a basis for further
growth of social and economic development.
CONCLUSION
In conclusion, it should be noted that the role of the
law of obligation in the development of civil law is
incomparable. Civil rights, on the other hand, when
there are certain gaps in the legal documents
regulating family, labor and use of natural resources
and environmental protection, fill them and contribute
to the development of the state and society and the
protection of the legal interests of individuals. makes a
worthy contribution.
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