On the issue of negative obligations in the civil law

Abstract

In the civil-law doctrine, there is a debate regarding the admissibility of “negative” obligations – that is, those performed by inaction. In the author’s view, this scientific problem turns out to be a semantic tangle in which conflicting ideas about the essential features of obligations are intertwined. The goal is not just to unravel the knot, but also to trace to what sources the semantic threads go, which will allow us bettering comprehension of the nature of mixed legal phenomena. Starting from the concept of obligation, the author shows the fallacy of the idea that inaction would amount to a kind of obligation on a par with action. Abstaining from action is nothing more than a way to transfer a value to another party. In order to enrich the scope of the study, the unsound objections to the recognition of such obligations are examined, one of those being the opinion of their incompatibility with the prohibition on limiting legal capacity. The article also refutes the idea that general provisions on obligations are inapplicable to obligations performed by abstaining from action. Finally, the work clarifies distinctions between such obligations and other legal phenomena with the use of case modelling. According to the author, in order to avoid institutional confusion, it is advisable to include in the Civil Code a provision indicating that obligations can be performed by abstaining from action.