iii. real contracts Flashcards
defintions of MUUTUM
= interest-free loan, one of the parties transfer a certain mount of money or fungible goods o the other party upon the agreement that the recipient will be bund to make restitution after certain amount of time of an equal amount of similar assets (TANTUNDEM EIUSDEM GENRIS REDDERE - return same amount of same kind)
The MUUTUM has been mainly used for loans between friends more economically relevant loans have been by stipulation, which allowed for the promise of interest.
It envisions the DATIO as the transfer of ownership of the loaned assets from lender to borrower.
prequisites for creation of MUUTUM
- appropriate CONVENTIO of a loan
- actual delivery of loaned assets: DATIO
- loaned assets must be fungible
- lender must have ownership over the assets or authority of disposal by means of DATIO
- borrower must acquire ownership of the loaned assets
FENUS NAUTICUM
= aims at financing maritime trade transactions with a specific distribution of risk: if the ship sinks, the borrower is not obliged to repay, but if it return he must repay the loan with interest.
CONDICTIO
= IUDICUM STRCITI IURIS, and aims at the delivery of a specific object or specific amount of goods (CERTA RES) or money (CERTA PECUNIA).
For it to succeed, the lender only has to prove that he delivered the loaned assets.
In case of monetary loans, it is called ACTIO CERTAE CREDITAE PECUNIAE. Where natural produce has been loaned, it is CONDITIO TRITICARIA.
loan on order
B asks L for loan, L orders a third-party to pay the amount of loan from his pocket to B. A contract of MUTUUM is created between B and L.
Two prerequisites:
- CONVENTIO of a loan between L and B
- third-party’s delivery of the loan amount to B
loan by agreement
The B owes L money, and they agree that instead of paying back the debts, the B is entitled to keep the money as a loan for a specific time.
CONTRACTUS MOHATRAE
B asked L for a loan, who instead of the amount of the loan gives certain objects from his possession to B upon the agreement that B should sell them and keep the proceeds as a loan.
Ulpian opinion regarding the creation of MUTUUM in the case of loan by agreement and CONTRACTUS MOHATRAE
Ulpian:
Both in the case of loans by agreement and CONTRACTUS MOHATRAE there is a contract of MUUTUM created, and so the lender has CONDICTIO.
An actual DATIO is deemed unnecessary, derived from the loan on order.
In the case of CONTRACTUS MOHATRAE there is no MUTUUM before the sale of the object, and thus the lender could only use a ACTIO PRAESCRPITIS VERBIS (action from innominate contract) The liability depends on whose interest the agreement was made.
Julian’s opinion regarding the creation of MUTUUM in the case of loan by agreement and CONTRACTUS MOHATRAE
Julian:
There is no MUTUUM created in the case of loan by agreement or CONTRACTUS MOHATRAE, because there is no DATIO taking place, and on the basis of CONVENTIO alone no MUTUUM can come into existence (mere agreement - NUDA PACTIONE).
He comes to a different conclusion with TRADITIO BREVI MANU, which might be considered a DATIO: if a depositor agrees to depositary using deposit as a loan, the possession and ownership is transferred, and thus they enter into a contract of MUTUUM.
He also says in the case he discussed that there is no possibility CONDICTIO, but ACTIO MANDATI can be sued because the mutual agreement modified the original mandate.
Ulpian’s view on claims resulting from delivery by unauthorised holder
G has stolen money from E, which he lends to N. Initially, G has no CONDICTIO against N, but as soon as N mixes the money with his own, N acquires original ownership. With this, E loses opportunity of REI VINDICATIO, and G can now bring a CONDICTIO against N.
SENATUS CONSULTUM MACEDONIANUM
= aimed to prevent loan transactions with children in the power of their PATRIA POTESTAS.
- It provides two forms of legal protection:
1. praetor either denies lender to bring CONDICTIO,
2. or borrower can bring an EXCEPTIO CONSULTI MACEDONIANI as a response to the CONDICTIO. - It remains after borrower has become SUI IURIS.
- Those who fraudulently pretended by the SUI IURIS are not covered by it.
- If PATER FAMILIAS approves the loan, it does not come into play.
DEPOSITUM
= an object is deposited with somebody upon agreement that the recipient gratuitously takes this object into safekeeping.
- The depositary is obliged to return the same item.
- The depositary is not allowed to make use of the objects in his safekeeping, unauthorised use is FURTUM USUS.
- It is BONAE FIDEI IUDICUM.
claims arising from DEPOSITUM
- It is a imperfectly obliging contract: counterclaims on the depositary’s side may arise, but not necessarily.
- Depositor may enforce his claims with ACTIO DEPOSITI DIRECTA.
- Depositary may enforce incurred expenses with ACTIO DEPOSITI CONTRARIA. He is entitled to keno the deposited assets until depositor has satisfied these claims. He does not need to plead EXCEPTIO DOLI because it is a BONAE FIDEI IUDICUM.
principle of utility
= the party whose economic interest in the contract is comparatively greater also bears a higher risk in case of damage.
By DEPOSITUM, the depositary makes a gratuitous favour, so he is only liable if he is grossly negligent.
DILIGENTIA QUAM IN SUIS REBUS
= depositary has to pay damages to depositor if he handled the deposited good with less care than his own property.
It is a subjective standard of carefulness, a breach of this is called CULPA IN CONCRETO.
CASUS MIXTUS - liability
If a depositary makes use of the goods in bad faith without consent, then he is liable to any damage that this use causes.
transforming DEPOSITUM of money into MUTUUM
The parties agree to transform specific coins into MUTUUM and change their CONVENTIO and the depository changes from DETENETOR to POSSESSOR, and acquires ownership through TRADITIO BREVI MANU, which functions as the DATIO of the loan.
DEPOSITUM IRREGULARE
= money is deposited and it is agreed that recipient may use the money and depending on agreement also pay interest. It entails the transfer of ownership to the recipient. It falls between DEPOSITUM and MUTUUM. It can be assumed when someone deposits money loosely and not in a sealed bag.
An ACTIO DEPOSITI can be granted in this circumstance as well (it leaves room for specific agreements).
It is impossible to tell if a DEPOSITUM has been converted to MUTUUM or DEPOSITUM IREGULARE, but in both cases.
DEPOSITUM SEQUESTRE
= when two parties dispute over the ownership of an asset, they can deposit it with a third party for the duration of the litigation proceedings. During this time, the possession of the sequester is protected by possessory interdicts. The person who wins the case can bring an ACTIO DEPOSITI SEQUESTRARIA.
COMMODATUM
= an object is given to another with the understanding that the recipient shall use it free of charge, in a way that ensures the preservation of its substance. The limits arise from agreement or BONA FIDES, and what exceeds this is FURTUM USUS.
actions arising from COMMODATUM
- It is BONAE FIDEI IUDICUM.
- lender: ACTIO COMMODATI DIRECTA
- borrower: ACTIO COMMODATI CONTRARIA
- Unlike depositary, the borrower must bear the ordinary operating costs (eg. feed for animals), but entitled for reimbursement of extraordinary expenses (eg. medical costs)
liability of COMMODATUM
- The borrower is subject to strict liability. He is not liable for VIS MAIOR, unless he exceeded the limit of permitted usage.
- according to Julian: borrower is not liable for harm done by of third-party
- according to Ulpian (Marcellus): he is liable if it could have been prevented or caused by own guardsmen.
- if lender steals back the object, borrower cannot bring ACTI FURTI unless he incurred expenses on it’s behalf.
PRECARIUM
= factual granting of use of an asset that is unilaterally revokable at the lender’s will. The recipient may protect his control by possessory interdicts, but cannot prevail over the giver of the object. (EXCEPTIO VITIOSA POSSESSIONIS).
The giver of the PRECARIUM has an INTERDICTUM DE PRECARIO, with which he can demand restitution or return of asset at any time.
PIGNUS (real contract of pledge)
= asset Is given with the agreement that it should serve as a pledge to secure a debt.
- only comes into existence with DATIO in contrast with right of pledge as a right in rem
- DATIO creates a real contract of pledge even when giver lacks authority of disposal: recipient becomes obligee but obtains to right in rem
- Generally, it does not entail permission to use the object.
actions arising from PIGNUS
- It is a BONEA FIDEI IUDICUM
- pledger: ACTIO PIGNARETICIA IN PERSONAM DIRECTA: restitution of pledged property and payment of SUPERFLUUM
- pledgee: ACTIO PIGNARETICIA IN PERSONAM CONTRARIA: compensation for damages and a new pledge if he failed to obtain right in rem.
