Exam (elaborations)
Roman Law - Contract (1).
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Roman Law - Contract (1).
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Roman Law - ContractMutuum, commodatum, pignus, depositum - ANS-Real Contracts (Justinian)
Mutuum - ANS-Real Contracts (Gaius)
A loan in kind of a fungible item (i.e. money).
Both ownership and possession were transferred.
A unilateral contract - bound to return the equivalent of the item loaned, not the item itself. -
ANS-Mutuum
A loan for use only.
Transferred neither ownership nor possession.
The contract is gratuitous, otherwise it falls under the umbrella of hire.
A bilateral contract, though liability of the borrower depended on whether the loan was for their
own benefit. If so, liability was higher. Generally only culpa levis in concreto applied.
The lender was liable to pay any abnormal costs incurred in the loan; they were liable only for
dolus (i.e. damage caused by a known defect).
The borrower had to use the item as intended or else he could be liable for theft. -
ANS-Commodatum
Depositing a thing for safekeeping but not use. Neither ownership nor possession was
transferred - only detention.
The depositee was only liable for dolus (fraud) and not culpa, as the depositor only had himself
to blame for entrusting his possession to someone careless.
Could be no deposit of land.
Depositor was liable for damage caused by the thing, and for reimbursing depositee for any
expenses incurred in looking after it. - ANS-Depositum
The giving of real security by transfer of possession.
A bonae fidae and bilateral contract, it involved the transfer of property as security by a
borrower to a lender by way of mortgage.
Only possession transferred, NOT ownership.
The borrower was liable for damages to the item, and to return any accretions to the item upon
the repayment of debt.
Customary to include the right of sale if debt was not repaid - by classical law this was implied. -
ANS-Pignus
Falls under pignus. Emerged in late Republic. The lender was promised rights in the borrower's
property in the event of an unpaid debt while the borrower retained possession and ownership
of that item.
Used mainly for mortgages. One item could be used as security for more than one loan.
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