Enforced performance of obligations to do something. Two examples from the civilian tradition

Abstract

Within Roman law, obligations to do something (obligationes faciendi) occupy a distinct position. On the basis of D. 3.3.45pr, D. 42.1.13.1 and D. 45.1.59 it is assumed that according to Justinianic law, an unwilling debtor cannot be compelled to perform actually something which exists in a certain act (nemo potest precise cogi ad factum). The rule displays itself particularly in procedural and execution law. In spite of this, the civilian tradition shows exceptional cases in which the creditor is capable of enforcing the actual performance of an obligation to do something. This contribution discusses two examples. In the thirteenth-century Bologna, an unwilling scribe who had personally committed himself to copy a text could be chained until the work was entirely finished. In the Roman–Dutch law of the seventeenth and eighteenth centuries, the court could declare an unwilling fiancé to be married (enforcement of betrothals). What considerations could in these cases justify such a violation of the debtor’s physical or psychic integrity?