ROMA HUKUKUNDA SÖZLEŞMESEL SORUMLULUK ÖLÇÜTLERİNDEN BİRİ OLARAK “ÖZEN YÜKÜMÜ (DILIGENTIA)”

Abstract

In the Roman Law, there was a progress from objective responsibility to subjective responsibility about how the debtor should be held responsible when he/she act improperly about his/her debt. Within this scope, while the debtor was held responsible when an unlawful result emerged in the first place, afterwards he/she was held responsible only if he/she was at fault. Determination of the fault was done in accordance with the criteria of responsibility. As Roman Law showed a constant progress, all responsibility criteria were not valid in all the periods. However, our research subject duty of diligence (diligentia) was accepted as a responsibility criterion in the Postclassical Law Period and Iustinianus Period, and its foundations were laid by the legists of the Republic Era. Meaning diligence and attention that should be shown for the performance of obligation, duty of diligence (diligentia) was accepted for determining culpa because the criterion of deceit (dolus) was not enough in some debt relation cases. In the Period of Iustinianus neglect was graded, but only slight negligence, which means the care taken by careful and caring persons, was determined by criteria of responsibility. Within this scope the debtor had to show sometimes the intangible criterion (culpa in abstracto) as a behavior of a diligent family man (diligens pater familias) and sometimes the tangible criterion (culpa in concreto) as the caution and diligence of people that they show in their own businesses (diligentia quam in suis) also in the relation of debt. Therefore, there were cases that the debtor did not act against the debt by acting with deceit (dolus) and in some cases the debtor was held responsible and his/her responsibility was extended. However, in some cases, when the debtors showed the caution and diligence, they show in their own businesses also in their debt relationship with the creditor instead of a diligent family man for acting in accordance with their debts, it sometimes alleviated the responsibility. In this way, these two types duty of diligence (diligentia) were formed within the scope of the thoughts of Roman legists about the tangible disagreements. Moreover, the concept of duty of diligence (diligentia) progressed within the framework of the verdicts of these legists and became one of the necessary criteria for the contractual responsibility of debtor.