Nature and Formation of Real Contracts
The category of real contracts is so called because these contracts all involved the delivery of a res (thing). It is important to understand with these contracts that, unlike modern law, in which these contracts are made by agreement just like any other, a contract falling into this category was not actually made until delivery took place.
Until delivery took place, either party could withdraw from the agreement. A bare agreement to enter into one of these contracts would not be enforceable.[2074]Modern law has moved away from this approach. The equivalents of these contracts in modern law are (in common with modern contracts generally) creÂated by the agreement of the parties. Thus, while in modern law these contracts all necessarily involve delivery (and in the case of pledge, this is still needed to constitute the real right in security), this is an obligation under a contract that has already been created by agreement rather than something that is constitutive of the contract.
Four real contracts were recognised: mutuum (loan for consumption), commodaÂtum (loan for use), depositum (deposit) andpignus (pledge).[2075]
B.