RE: the `real` contracts

Ex Contractu...
RE: the ‘real’ contracts
José Luis Alonso & Jakub Urbanik
The Roman Law of Obligation III
Chair of Roman and Antique Law.
University of Warsaw
The Real Contracts
Origins:
Fiducia cum creditore contracta -->
pignus
Fiducia cum amico contracta -->
commodatum, depositum
Nexum --> mutuum
The Real Contracts
commodatum: gratuitous loan for use
pignus: possessory pledge
depositum: deposit
Mutuum: loan for consumption
Main differences:
Mutuum (loan for consumption)
versus
Deposit, loan for use (commodatum),
possesory pledge (pignus)
Main differences:
Mutuum
Depositum, pignus,
commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Fungible things
Non-fungible thins
Based on the strict law
Based upon good faith
(classical law)
Obligation to give (dare)
Obligation to perform
(facere)
Actions
Mutuum: condictio certae creditae
pecuniae/rei
Actio depositi directa/contraria
Actio commodati directa/contraria
Actio pigneraticia directa/contraria
Debtor’s liability
Mutuum: the debtor bears the contractual
risk (as the owner of the thing!)
Deposit: liability for deceit (dolus) and
perhaps gross negligence
Pignus/Commodatum: liability for safekeeping (custodia) as well as deceit and
negligence
Mutuum
G. 3.90. Of real contracts, or contracts created by
delivery of a thing, we have an example in loan for
consumption, or loan whereby ownership of the
thing lent is transferred. This relates to things
which are estimated by weight, number, or
measure, such as money, wine, oil, corn, bronze,
silver, gold. We transfer ownership of our property
in these on condition that the receiver shall
transfer back to us at a future time, not the same
things, but other things of the same nature: and
this contract is called Mutuum, because thereby
meum becomes tuum.
D.12.1.11.1: How much does one owe
Ulpian, from the 26th book of Commentary on
the Edict: If I give you ten, so that you shall
owe me nine, Proculus holds - and rightly, that
by that right you shall owe me no more than
nine. But if I give you (ten), so that you shall
owe me eleven, Proculus thinks, that more
than ten cannot be claimed.
Why so?!
Condictio
certae creditae pecuniae
If it appears that the defendant ought to give
on the basis of the civil law to the plaintiff
100, let the judge condemn the defendant in
favour of the plaintiff for 100, if it does not
appear, let the judge absolve him.
D.12.1.15: SOME SINGULAR RULES
(the ficticious datio)
Ulpian, Edict, book 31: Some singular rules have
been accepted concerning loans of money.
If I tell my debtor to give you money, you come
under an obligation to me even though the coins
you have received were not mine.
Then, what holds for two people has to be applied
also to one person,
so for example if you owe me money because of a
mandate, and it is be agreed that you shall keep
them on the basis of loan for consumption, the
money is thought to have been given to me and
(then) delivered to you by me.
TRANSFER
mutuum
ME
YOU
iussum
datio pecuniae
MY DEBTOR
TRANSFER
mutuum
ME
YOU
iussum
datio pecuniae
MY DEBTOR
TRANSFER
mutuum
ME
YOU
iussum
datio pecuniae
MY DEBTOR
D.12.1.15: SOME SINGULAR RULES
(the ficticious datio)
Ulpian, Edict, book 31: Some singular rules have
been accepted concerning loans of money.
If I tell my debtor to give you money, you come
under an obligation to me even though the coins
you have received were not mine.
Then, what holds for two people has to be applied
also to one person,
so for example if you owe me money because of a
mandate, and it is be agreed that you shall keep
them on the basis of loan for consumption, the
money is thought to have been given to me and
(then) delivered to you by me.
ME
Of mandate
YOU
ME
Of mandate
YOU
ME
ME
ME
Of mandate
YOU
YOU
ME
ME
Of mandate
YOU
YOU
ME
ME
Of mandate
solutio
YOU
YOU
ME
ME
Of mandate
solutio
YOU
YOU
ME
ME
ME
Of mandate
solutio
YOU
YOU
ME
YOU
ME
ME
ME
Of mandate
solutio
datio
YOU
YOU
YOU
ME
ME
ME
Of mandate
solutio
datio
YOU
YOU
YOU
ME
ME
Of mandate
solutio
datio
YOU
YOU
YOU
Of mandate
ME
ME
solutio
datio
YOU
YOU
Of mandate
ME
ME
solutio
datio
YOU
YOU
ME
ME
solutio
datio
YOU
YOU
ME
solutio
datio
YOU
YOU
ME
solutio
YOU
datio
ME
solutio
YOU
ME
YOU
ME
YOU
ME
YOU
ME
Datio
ficticia I
YOU
ME
Datio
ficticia I
YOU
Datio
ficticia II
D.12.1.11 pr.: Contractus mohatrae
Ulpian, 26 book on the Edict:
You have asked me to lend you money. As I had none,
I gave you a bowl or a gold-nugget to sell and use the
money. If you sell I think that a loan for consumption
has been given. But suppose you lose the bowl or the
block before the sale without fault on your part. Does
the loss fall on you or me? I think Nerva draws
exactly the right distinction. He says it all depends on
whether or not I had the bowl or block up for sale. If
yes, the loss falls on me, just as if I handed it over to
another to be sold. On the other hand, if I did not plan
to sell but it was moved to do so only to enable you to
use the money, the loss is yours - and all the more if
the loan is interest free.
Contractus mohatrae
A
B
Contractus mohatrae
A
B
Contractus mohatrae
A
B
A
B
Contractus mohatrae
A
A
B
1000
B
Contractus mohatrae
A
A
B
1000
B
Contractus mohatrae
A
B
A
A
B
B
A
1000
B
Contractus mohatrae
A
B
A
A
B
B
A
1000
B
Contractus mohatrae
A
B
A
A
B
B
A
1000
B
Contractus mohatrae
A
B
A
A
B
B
A
800
1000
B
Contractus mohatrae
A
B
A
A
B
B
A
1000
800
B
D. 12.1.9.9: Ulpian, Edict, book 26
I made a deposit with you of ten. Later I allowed you
to use them. Nerva and Proculus hold that even
before they are moved a condictio lies for them as
upon a loan for consumption and that is correct, as
Marcellus also finds, because the intention initiates
possession (animo). Hence risk passes to him who
sought the loan for consumption, and the condictio
D. 12.1.10: Ulpian, Edict, book 2
On the other hand, if from the beginning of the
deposit I say you may use it if you want to, then
because it is not certain when there will be any
indebtedness the credit does not happen until the
money is moved.
Marcus gave 1000 to Titius in deposit and left to
Africa. A couples of months later Titius asked him
in a letter if he could make use of half of the
deposited sum, to be repaid later with 5 %interest.
To that Marcus answered with the following
parchment:
“Marcus to Titius, a greeting, I hope I find you in
good health. you may use my money provided
that you repay me with 5% interest. Farewell”.
When the letter-bearer arrived to Titius’ house, he
found still burning ruins. Apparently it had just
been struck by a lighting bolt. How much does he
have to pay back to Marcus? What if he has
allowed Titius to use the money upon delivering it
to him?
Allahuma salli ala
Muhammadin wa
Aal-e
Muhammad:
O God! Shower thy
blessings on Muhammad
and the descendants of
Muhammad.
Wishing you a very
happy Purim
XRISTOS ANHSTH,
ALEYVS ANHSTH
Wesolego Jajka!
Some Practical
Implications
Puteoli/Pozzuoli & Sulpicii
Puteoli/Pozzuoli & Sulpicii
Puteoli/Pozzuoli & Sulpicii
Puteoli/Pozzuoli & Sulpicii
A credit from Puteoli
TPSulp. 55, tab I, pag. 2 (graphio, scriptura interior)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
V nonas Mar[tia]s (3.03.49)
C(aio) Pompeio Ga[llo Q(uinto)] Vera[nio] co(n)sulibus
P(ublius) Verg[ili]us Am[pliatus] scripsi
me accepisse m[utu]a e[t deb]ere
Sex(to) [Gr]anio Num[eni]o sestertia
[quin]que mi[llia num]mum
[ea]q[ue HS V m(illia n(ummum) quae supra s[cript]a
sunt pr[o]ba recte dari s[tip]ulatus est S[e]x(tus) Gr[a]nius [Numerius]
[spopondi P(ublius) Vergil]ius A[mpliatus.]
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
[spopondi P(ublius)] Vergiliu[s Ampliatus.]
C(aio) Pom[peio] Gallo Q(uinto) Vera[nio co(n)sulibus]
[V] nonas Mar[tia]s (3.03.49)
P(ublius) [V]ergilius Ampliatus sc[ripsi me]
dedisse Sex(to) Granio Num[enio]
pignori argentum p(ondo) X[ _ _ ]
plus minus, quod est sig[no]
meo signatum, ab HS V m(illia) [n](ummum)
[quae] ab eo mutua accepi [hac?]
[die? pe]r [c]h[iro]graphum meu[m.]
During the consulship of Caius Pompeius Gallus and
Quintus Veranius, 5 days before the Nones of March
(3.03.49). I Publius Vergilius Ampliatus have written
that I have received a loan of money and I owe to Sextus
Granius Numerius 5 thousand sesterces of coins. And
these 5000 sesterces of coins shall be properly returned
in good coin. Sextus Granius has asked for a formal
promise for that, and I Publius Vergilius Ampliatus have
stipulated.
During the consulship of Caius Pompeius Gallus and
Quintus Veranius, 5 days before the Nones of March
(3.03.49). I Publius Vergilius Ampliatus have written
that I have given to Sextus Granius Numerius ???
pounds of stamped silver as pledge for these 5000
sesterces of money which I have received today from
him as a loan by my chirographum. Acted in Puteoli.
LABEO
D. 50.16.19 Ulpianus libro 11 ad Ed.: Labeo libro primo praetoris urbani
definit, quod quaedam agantur, quaedam gerantur, quaedam contrahantur:
et actum quidem generale verbum esse sive verbis, sive re quid agatur ut in
stipulatione vel numeratione: contractum autem ultrocitroque obligatione,
quod Graeci sunãllagma vocant, veluti emptionem venditionem,
locationem conductionem, societatem: gestum rem significare sine verbis
factam.
Labeo in the first book on the edict of urban praetor defines that
some things are acted, other carried out, other contracted. And
indeed ‘acteď is a general word whether something is acted by
words or things, like in stipulation or computation. ‘Contracteď
denotes bilateral obligation which the Greeks call synallagma, as for
instance, sale or purchase, hire or partnership. ‘Carried ouť means a
thing done without words.
Stipulatio
• Form
• Types/Function
• sponsio/fidepromissio & fideiussio &c.
• various types of warranties and
guarantees, penal clause strengthening
another obligation, cession of a credit ...
• Abstractness and flexibility
Formulas
• actio ex stipulatu, but also:
• actio certae creditae pecuniae/rei
Stipulatio
• Consider the consequences of the
following stipulations:
Publius asks his prospective father-inlaw:
a) ‘do you promise to give me 10?’ Yes, I
do’
b) ‘do you promise to give me 10 as a
dowry for your daughter Maevia?’ ‘Yes I
do’
Dotis promissio
D. 23.3.21, Ulpian, 35 book on Sabinus
A stipulation which is made to constitute
a dowry is considered to include a
condition ‘if the marriage is contracted’,
and thus one can sue upon this
stipulation (even if the condition has not
been expressively formulated) only
when the marriages has taken place. And
if the envoy is called back, the condition
is considered not to have been fulfilled.