Abstract:

In Roman Law, in cases where alternative obligation (obligatio alternativa) was in question, a debtor who had obligations arising from two or more acts would be free from his obligation upon the performance of either of such acts (duae res in obligatione, una in solutione). Commitment to "Slave Stichus or ten As" exemplifies the alternative obligation. As might be understood, uncertainty exists in terms of which act would be performed for the alternative obligation including several acts. With the exercise of the right of choice, such uncertainty would be eliminated. If a person authorized to exercise the right of choice made his choice, one of the acts would definitely become the subject of the obligation. If the debitor fulfilled the act that was chosen, the obligation would also come to an end. The right of choice, as a rule, belonged to the debtor, and it was possible to grant the right of choice to the creditor or a third party, depending on the agreement of the parties. Although the information in the sources seems to contradict, it is generally accepted that the debitor could exercise his right of option until the moment of performance. In the event that the right of choice was given to the creditor, if the creditor demanded one of the acts or filed a lawsuit against the debitor in the classical period, he could not withdraw from his choice once the requested act was determined as per litis contestatio. In the Iustinianus Law, however, the creditor could not withdraw from his choice as of the time when he filed a lawsuit and demanded one of the acts. It was possible that the performance of one of the acts subject to the alternative obligation would become impossible after the arising of the debt. In the event that the right of choice belongs to the debitor, if one of the acts became impossible due to the fault of the debitor, the obligation would be collected on the remaining performance. Therefore, in this case, the debitor's right of choice would be expired. Addressing the concept of alternative obligation in Roman Law, this study compares the alternative obligation with other similar concepts, explains the right to choose, and defines the performance of the alternative obligation in the light of the information in the legal literature.

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