OBLIGATIONS ARISING BY CONDUCT

Four types of contract are identified by Justinian as arising by conduct. In each case, the conduct in question is the delivery of an item of property.

Mutuum

The contract of mutuum was one of the two contracts of loan, the other being commodatum (discussed below).

It might be thought from the inclusion of loans of money under the heading of mutuum that this contract would have been of considerable com­mercial importance. However, its importance in this regard was restricted by the fact that it was gratuitous, although provision for payment of interest could be made by stipulatio (see below).

In mutuum, ownership of the property passed to the borrower. For this reason, the borrower was liable to make repayment even if the property was destroyed.

Commodatum

Commodatum was a loan for use. Unlike in the case of mutuum, the borrower in a contract of commodatum did not acquire ownership of the property and was under an obligation to return the same item to the lender. The borrower was not liable for accidental damage to the property, although he was obliged to take care of the property and would be liable in the case of any damage caused by his fault.

As with mutuum, commodatum was gratuitous. If any charge was made, the contract would be one of hire.

Deposit

The contract of deposit involved property being handed over to a person called a depositee to be looked after. The depositee had no entitlement to use the property, or the appropriate contract would be commodatum. The depositee was liable to return the property, but was liable only for damage he had caused intentionally. The depositee was not even liable if he negligently damaged the property.

Pledge

The fourth contract falling into this category was the contract of pledge. The delivery of an item of property to a creditor in security for a debt gave the creditor a real right in that property, and we have already looked at pledge in that context (see Chapter 4).