Real contracts Flashcards
Types of real contracts (contracts re)
There were 4 in developed law
these being
Mutuum
commodatum
depositum
pignus
general features of real contracts
all became binding on the transfer of a thing - to be returned in specie (in actual form) or equivalent, or otherwise disposed of at the end of the transaction
Both the delivery and the agreement were necessary for the creation of a binding obligation
Mutuum
it was for the benefit of the recipient
was a loan for consumption of money or other fungible goods
borrower expected to restore - not the same thing - but an equivalent amount of the same kind and quantity
unilateral contract - stricit iuris - only binds the borrower
Mutuum in regard to nexum
it may have already existed alongside it
but it became the normal loan for consumption after nexum was made obsolete by the lex poetilia
Remedy/actions in regard to mutuum
remedy for money loans was the actio certae pecuniae creditae
for other things it was the condictio certae rei - also known as condictio triticaria
Transfer of the loan
dominium in what was lent was passed to the borrower
so there is a datio (giving) to the borrower
any valid form of traditio was sufficient
Interest on Mutuum
Due to borrowers duty - mutuum was inherently gratuitous
BUT
for money loans lender would generally demand interest (usurae)
to charge interest another contract - stipulatio - was needed
Became normal to replace the mutuum contract with a new stipulation contract
This contract would be for the capital repayment and payment of the amount of interest accrued according to the agreed rate (stipulatio sortis et usurarum)
If interest paid without one of these contracts
It reduced the capital amount needed to repay
An informal agreement to pay interest would only create a natural obligation
The classical law rule was that no action amounted from a pact
Senatusconsultam Macedonianum enactment regarding mutuum
they enacted a qualification that:
Magistrates should refuse actions to those who lent money to a filiusfamilias
So, when an action was brought, D was given the exceptio Senatusconsulti Macedoniani
This was available to both people alieni iuris but also their paterfamilias
Commodatum
- It was a loan for use
- It differed from mutuum in the sense that the specific thing handed over had to be returned or otherwise disposed of, as agreed, at the end of the loan
It was an imperfect bilateral contract
- It was usually a loan of imperishables
- There could be it of land – and sometimes perishables – ad pompam vel ostentationem
Development of commodatum
- As a modified form of fiducia cum amico, it was only protected by a praetorian originally
- But In the course of the 1st century of the empire – it would appear to have been accepted as a civil contract with bonae fidei actiones in ius –
- Originally known as datio ad utendum
- Likely gained its name via the edict
Effect + additional requirements
Gave the borrower detention of the thing - unlike precarium which gave interdictal possession
Further it had to be for a purpose
and from loco conductio - as it was gratuitous
The contract concluded with delivery of the thing to the borrower
due to only detention passing - the lender did not need to be owner - hence possible by a thief
Borrower obligations in commodatum
principal obligation was to restore the thing back to the lender in the same condition at the end of the loan
with fair wear and tear expected
if no specified time frame - just had to be a reasonable time
also had to be returned with its causa, such as animal young it had during the the time of the borroweer
borrower liability in commodatum
As he profited from the contract,
was expected to show the care of a bonus paterfamilias
So he was liable for culpa levis in abstracto
BUT
where the loan was for the benefit of both parties
liability modified to culpa levis in concreto
unauthorised use of the thing rendered the borrower liable for any damage to or loss of the thing
The lender obligations + liability
he had to:
1, afford the borrower enjoyment of the thing for the purpose and period agreed
2, reimburse any exceptional expenses incurred by the borrower
further he was liable for damage caused to the borrower by defects of the thing of which he knew but did not disclose - essentially he was liable for dolus
actions regarding commodatum
lender had the actio commodati directa - could be in ius or in factum
borrower had the actio contraria
BUT
more effective to him was his right to retrain the thing (ius retentionis) until he had received anything which was due to him
Depositum
Was a gratuitous delivery
Gave mere detention of the thing to the depositee
But it was exclusively for the benefit of the transferor/depositor
It was an imperfectly bilateral contract
So had actions in factum and bonae fidei in ius
A deposit could only be made of a moveable thing
as only detention passed
deposit of a thief or someone in contract - could still be valid
The depositee
Had to restore the thing on demand
regardless of if the deposit had been for a set period
had to also restore the causa of the thing
- not allowed to use the thing
- if he used it – guilty of furtum
- since he did not benefit – liable only for dolus – special pact in contract may increase his liability
The depositor
due to being the beneficiary
was liable for dolus and culpa levis in abstracto and for expenses incurred from the depositee in looking after the thing or damage caused to him by the thing
for these claims the depositee had the right of retention in the thing – like in commodatum – Until J’s time
Actions regarding depositum
Actio depositi directa
- was the action against the depositee
- if it was successful
- D was cast in damages
- But also became infamis (person of bad reputation)
Actio depositi contraria
- Wad the action against the depositor
- Judgement against him did not involve infamy
the 3 special variants of the basic contract of deposit
Depositum miserabile
Sequestratio
Depositum irregulare
Depositum miserabile
Deposit made in time of stress
Did not give depositor his normal liberty of selecting who to trust the goods with
The degree of liability of the depositee was not increased
BUT he was condemned to double damages in an action brought against him by the depositor
sequestratio
Deposit made by 2 or more people jointly
The recipient (sequester) to restore the thing to one of them in specified circumstances
Often due to a dispute over the thing sequester would return it to the winner of the dispute
It gave the sequester interdictal possession of the thing
Depositum irregulare
- Deposit of money
- Usually with a banker
- On the footing that the recipient should restore an equivalent amount, as a whole or in installments
- Ownership would pass to depositee
- Commonly held that it was post-classical creation
