Chapter Summary
The real contracts were among the oldest, and had in common with each other that they were all created by the delivery of the item of property with which they were concerned. Four contracts were recognised as falling into this category.
These were mutuum (loan for consumption), commodatum (loan for use), depositum (deposit) and pignus (pledge), and each was quite distinct in its nature and consequences. Mutuum, commodatum and depositum were all gratuitous. If payment was made, the contract would fall into a different category. Pignus was different: the whole point was that the property was delivered in order to be held as security for a debt. Only in the two loan contracts was there a right of use of the property. Indeed, in mutuum the borrower became owner of the item delivered, and was simply subject to the obligation to restore to the lender an equivalent of the thing lent. For that reason, mutuum was the only one of these contracts that did not impose any particular obligations with regard to the care and use of the item delivered.Further Reading
G.3.90-1
J.3.14 D.12.1; 13.6; 16.3
C.4.23, 24
P Birks, The Roman Law of Obligations (E Descheemaeker ed, Oxford University Press 2014) chapter 6
E Metzger ed, A Companion to Justinian’s Institutes (Duckworth 1998) 128—34
A Watson, The Law of Obligations in the Later Roman Republic (Oxford University Press 1965) chapters 2, 8-10
R Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford University Press 1996) chapters 6-7
Source:
Anderson Craig. Roman Law for Scots Law Students. Edinburgh University Press,2021. — 496 p.. 2021
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