In
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
, contracts could be divided between those ''in re'', those that were
consensual
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
, and those that were
innominate contracts in Roman law (Contratti innominati (diritto romano)). Although
Gaius
Gaius, sometimes spelled ''Gajus'', Kaius, Cajus, Caius, was a common Latin praenomen; see Gaius (praenomen).
People
*Gaius (jurist) (), Roman jurist
*Gaius Acilius
*Gaius Antonius
*Gaius Antonius Hybrida
*Gaius Asinius Gallus
*Gaius Asinius Pol ...
only identifies a single type of contract ''in re'', it is commonly thought that there were four, as
Justinian
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
identifies: ''mutuum'' (loan for consumption), ''commodatum'' (loan for use), ''depositum'' (deposit) and ''pignus'' (pledge).
Each varied about the expected standards of care, transfer of ownership, and other practicalities stemming from the purpose of each. They all involved the delivery or a physical thing, which is a defining characteristic. They were generally supplemented by the ''stipulatio'' and inominate contract, which allowed additional provisions such as interests to be added to contracts ''in re'' making them more suitable for commercial applications.
General features
Justinian
Justinian I (; la, Iustinianus, ; grc-gre, Ἰουστινιανός ; 48214 November 565), also known as Justinian the Great, was the Byzantine emperor from 527 to 565.
His reign is marked by the ambitious but only partly realized ''renovat ...
identifies four types of real contract – contracts ''in re'' (in a thing) – ''mutuum'', ''commodatum'', ''depositum'' and ''pignus''. Common to all four was an agreement, and the delivery of a ''res corporalis''.
They are in contrast to
consensual
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
and
inominate contracts.
Real contracts were of limited significance, although they are featured prominently in the works of jurists. If a ''stipulatio'' had to be created to cover any interest, then it could be used to cover the other elements of the transaction as well.
Gaius
Gaius, sometimes spelled ''Gajus'', Kaius, Cajus, Caius, was a common Latin praenomen; see Gaius (praenomen).
People
*Gaius (jurist) (), Roman jurist
*Gaius Acilius
*Gaius Antonius
*Gaius Antonius Hybrida
*Gaius Asinius Gallus
*Gaius Asinius Pol ...
, however, only mentions one type of contract ''in re'': ''mutuum''. The others certainly existed in Gaius' time.
The other three can be distinguished insofar as they are different from traditional concepts of debt from which real contracts developed, are bilateral, do not transfer ownership, are ''bona fide'' and
praetor
Praetor ( , ), also pretor, was the title granted by the government of Ancient Rome to a man acting in one of two official capacities: (i) the commander of an army, and (ii) as an elected '' magistratus'' (magistrate), assigned to discharge vario ...
ian in nature. Gaius can therefore be seen as writing at a developing time in the law, although why the others are not mentioned at all in the ''
Institutes of Gaius
The ''Institutes'' ( la, Institutiones; from , 'to establish') is a beginners' textbook on Roman private law written around 161 CE by the classical Roman jurist Gaius. The ''Institutes'' are considered to be "by far the most influential el ...
'' is not known.
''Mutuum''
A ''
mutuum'' was a loan for consumption.
It was the oldest contract ''in re'', growing in importance after 326 BC when the
lex Poetalia was passed.
It could be used by people without the right of ''commercium'' – a package of rights to participate in the ''
ius civile
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor Justin ...
'' and to undertake remedies.
It involved the delivery of certain types of
fungible
In economics, fungibility is the property of a good or a commodity whose individual units are essentially interchangeable, and each of whose parts is indistinguishable from any other part. Fungible tokens can be exchanged or replaced; for exam ...
goods, such as money, food, and drink. Ownership was transferred, as was possession.
In a strict sense then, because ownership passed, it should not be considered a loan.
The ''mutuum'' obliged the borrower not to return the thing itself, because its use would involve consumption, but a similar thing in quantity, quality and size.
The lender had a ''condictio'' action for the value of the thing if a similar thing was not returned as described.
It was ''stricti iuris'' ("strict law") – the lender could not claim interest.
Despite this, it became the standard arrangement for moneylenders in the
Roman republic
The Roman Republic ( la, Res publica Romana ) was a form of government of Rome and the era of the classical Roman civilization when it was run through public representation of the Roman people. Beginning with the overthrow of the Roman Kin ...
. Interest would instead have to be given in a ''
stipulatio
''Stipulatio'' was the basic form of contract in Roman law. It was made in the format of question and answer.
Capacity
In order for a contract to be valid, parties must have capacity: both ''intellectus'' ("understanding") and '' voluntas'' ("wi ...
'', an additional contract.
Rates of interest were heavily regulated by the state. As a ''mutuum'' did not place on the borrower any specific date on which to return the equivalent thing, this would also be given in a ''stipulatio'' if required. In the later law, the ''stipulatio'' replaced ''mutuum'' completely.
The borrower was bound to return the equivalent thing. As owner, he bore liability for loss, theft, or damage; they were irrelevant to his liability for the thing.
Two exceptions were made, where repayment would be dependent on the success of the operation: the financing of a cargo ship, and the sponsorship of a professional athlete. Neither was liable if they did not succeed; the risk was born by the lender.
''Mutuum'' was unilateral and did not place the lender under any obligations or duties.
''Commodatum''
A ''
commodatum'' was a loan for use. It did not transfer ownership nor possession, and was also gratuitous (no interest could be charged). If interest was included, the agreement was instead either one of hire or an innominate contract.
It was assumed to be for a "reasonable time" if this was not specified at the time of the agreement. Land could be the subject of a ''commodatum'' during the Classical period and later, though this was doubted before that. Perishables could not be loaned for use, unless they were to be used for display purposes only, or a small number of other exceptions. The lender under a ''commodatum'' did not have to be owner, since ownership was not transferred.
A borrower was held (in most juristic texts) to a standard of ''culpa levis in abstracto'' – the borrower was liable if his or her conduct fell short of the ''diligentia'' (care) of a ''bonus paterfamilias'' – a good, respected, head of the family.
Some commentators consider the relevant standard to have instead been that of a ''diligentissimus paterfamilias'' ("most careful head-of-family"), a higher standard.
This may have developed from an earlier standard of ''custodia''. ''Custodia'' was a form of strict liability, where the only situation when the borrower would not be liable would be actions of a "greater force" (''vis maior'') such a theft with force, or what is called in the modern English law an
act of God
In legal usage in the English-speaking world, an act of God is a natural hazard outside human control, such as an earthquake or tsunami, for which no person can be held responsible. An act of God may amount to an exception to liability in con ...
.
If the borrower was liable, then he had an action available against the thief (the ''
actio furti
''Furtum'' was a delict of Roman law comparable to the modern offence of theft (as it is usually translated) despite being a civil and not criminal wrong. In the classical law and later, it denoted the contrectatio ("handling") of most types of p ...
'') or damager under the
Lex Aquilia
The ''lex Aquilia'' was a Roman law which provided compensation to the owners of property injured by someone's fault, set in the 3rd century BC, in the Roman Republic. This law protected Roman citizens from some forms of theft, vandalism, and dest ...
. Where the borrower was liable, Justinian at least gave the lender the choice of whether to sue the borrower ''in personam'' in breach of contract, or the thief or damager.
The borrower was also liable for ''furtum'' if he misused the thing he had borrowed. If the borrowed thing had undisclosed defects which caused damage of which the lender was aware, then the lender would be liable under
delict
Delict (from Latin ''dēlictum'', past participle of ''dēlinquere'' ‘to be at fault, offend’) is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of ...
.
The appropriate action for breach of contract was the ''actio commodati''. If the lender owed the borrower money relating to another contract or sale, then he could keep the borrowed thing and offset the cost against the debt He could also bring the ''actio commodati contraria'' if his expenses exceeded the value of the property borrowed.
''Depositum''
A ''
depositum'' was a
deposit for safekeeping. It did not transfer ownership nor possession, and was also gratuitous.
Land could not be the subject of a deposit. If interest was included, then the deposit became a contract of hire. Since ownership did not pass, a thief could deposit. The depositee could not benefit from the deposit in any way.
If the depositee used the thing, then this was considered theft by ''
furtum usus
''Furtum'' was a delict of Roman law comparable to the modern offence of theft (as it is usually translated) despite being a civil and not criminal wrong. In the classical law and later, it denoted the contrectatio ("handling") of most types of p ...
''.
It appears that the depositee was held to ''culpa lata'' standard. This meant that the depositee was liable if found to have been grossly negligent: careless to the extent that bad faith could almost be assumed. ''Culpa lata'' was therefore similar to ''dolus'' ("fraud").
Indeed, some commentators consider ''dolus'' to be the appropriate standard.
The parties could agree to vary the level of care expected of the depositee. A depositee was expected to return the thing on demand. Reasonable "
wear and tear
Wear and tear is damage that naturally and inevitably occurs as a result of normal wear or aging. It is used in a legal context for such areas as warranty contracts from manufacturers, which usually stipulate that damage from ''wear and tear'' w ...
" was acceptable. The depositee was also bound to hand over any accretions of the thing, such as any young born to a deposited animal.
The depositor was liable for any damage caused by the deposited thing, and the cost of transportation if the place that the things was to be returned differed from that where it was borrowed. The ''actio depositi'' was available to the depositor to seek return of his goods, with double damages awarded if the damage had been made in an emergency, such as during fire or riot. It resulted in ''
infamia
In ancient Roman culture, ''infamia'' (''in-'', "not," and ''fama'', "reputation") was a loss of legal or social standing. As a technical term of Roman law, ''infamia'' was an official exclusion from the legal protections enjoyed by a Roman citiz ...
'' if the depositee was held liable.
The depositee had the ''actio depositi contraria'' if expenses were paid. Originally, it seems that the expenses could be set against the value of the thing in the ''actio depositi'', but, if so, this ability came to an end in the time of Justinian.
There were two special types of deposit. The first was the ''depositum irregulare'' of fungibles, normally money. In contrast to a usual deposit, ownership did pass, granting more rights to the depositee to protect the property. It had to be returned on request, and the transferee could derive no benefit from it.
The second was , whereby a thing whose ownership was disputed was deposited with a third party, bound to return it to the successful party in a ''vindicatio'' or similar action. Because possession passed, both parties were prevented from
usucapting until the disagreement was settled. It could be used in relation to land or movables.
''Pignus''
A ''pignus'' ("pledge") was a form of real security which transferred possession but not ownership.
It often formed part of a mortgage or similar transaction.
It developed later than the similar ''fiducia'', where ownership was transferred as well as possession. Accordingly, the thing could be sold by the owner and deducted from the debt without recourse to the pledgor, and whilst it was owned by pledgee the pledgor had no right of use. It also required a formal conveyance.
This is in contrast to the ''pignus'', which could be carried out by ''
traditio''. ''Fiducia'' remained popular with lenders who enjoyed increased security, whereas a ''pignus'' was more useful to the pledger. ''Fiducia'' lasted until the late
empire
An empire is a "political unit" made up of several territories and peoples, "usually created by conquest, and divided between a dominant center and subordinate peripheries". The center of the empire (sometimes referred to as the metropole) ex ...
, but was increasingly eclipsed by ''pignus''.
The pledgee, if he was in physical control of the object (as was usually the case) was required to safeguard the thing.
Like the borrower, a pledgee was held to the ''culpa levis in abstracto'' standard; again, this may have developed from ''custodia''.
The pledgor was liable for damage done by his thing deposited, if he acted without the care of a ''bonus paterfamilias''. If the pledgee fell short of the expected standard, the contract was terminated immediately. The pledgee could claim for expenses incurred in maintaining the thing (such as an animal or slave).
The pledgee had to set any profits derived from the thing against the outstanding debt. The pledge was repaid when the debt was settled, along with any accretions.
The pledgor had no action without repayment. The pledgee did not have ownership, and therefore could not sell or destroy the thing, which was restrictive. A
right of sale was typically agreed between the parties, to come into effect after a set time. So common was this that it was often considered implied. The amount would be deducted from the debt, interest and expenses added, and this could then be sued for under whichever contract had formed the debt.
References
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{{Obligations in Roman law
Roman law
History of contract law