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 ContractsMutuum: loan for consumption

LENDER --> BORROWER

pignus: possessory pledge:

PLEDGER --> PLEDGEE

depositum: deposit

DEPOSITOR --> DEPOSITARY

commodatum: gratuitous loan for use

The Real ContractsMutuum: loan for consumption

LENDER --> BORROWER

pignus: possessory pledge:

PLEDGER --> PLEDGEE

depositum: deposit

DEPOSITOR --> DEPOSITARY

commodatum: gratuitous loan for use

CF. Bailment

Main differences:

Mutuum (loan for consumption)

versus

Deposit, loan for use (commodatum), possessory pledge (pignus)

Main differences:

Main differences:

Mutuum Depositum, pignus, commodatum

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based on the strict law Based upon good faith (classical law)

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based on the strict law Based upon good faith (classical law)

Obligation to give (dare) Obligation to perform (facere)

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based on the strict law Based upon good faith (classical law)

Obligation to give (dare) Obligation to perform (facere)

Divisible Indivisible

Main differences:

Mutuum Depositum, pignus, commodatum

Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based on the strict law Based upon good faith (classical law)

Obligation to give (dare) Obligation to perform (facere)

Divisible Indivisible

Exception:‘irregular’ types

Actions

Mutuum: condictio certae creditae pecuniae/rei

Actio depositi directa/contraria

Actio commodati directa/contraria

Actio pigneraticia directa/contraria

Debtor’s liability

Debtor’s liabilityMutuum: the debtor bears the contractual risk (as the owner of the thing!)

Debtor’s liabilityMutuum: the debtor bears the contractual risk (as the owner of the thing!)

Deposit: liability for fraud (dolus) and perhaps gross negligence

Debtor’s liabilityMutuum: the debtor bears the contractual risk (as the owner of the thing!)

Deposit: liability for fraud (dolus) and perhaps gross negligence

Pignus/Commodatum: liability for fraud and negligence (as the most diligent father-of-family) as well as for safe-keeping (custodia)

PRAESTARE = secure/guarantee that Dolus (Fraud)

Culpa lata (gross negligence)

Culpa levis (lesser negligence: abstract standard, subjective standard)

Custodia (default in safe-keeping)

Casus (force-majeure)will not interfere

with the performance

Custodia

Custodia•a duty to keep thing safe:

Custodia•a duty to keep thing safe:

•the debtor becomes liable if he has not prevented the loss of the thing

Custodia•a duty to keep thing safe:

•the debtor becomes liable if he has not prevented the loss of the thing

•the only circumstance that excludes liability is force-majeure

Custodia•a duty to keep thing safe:

•the debtor becomes liable if he has not prevented the loss of the thing

•the only circumstance that excludes liability is force-majeure

•yet, the efforts of the debtor are not examined, the mere fact that the thing has been lost, makes him liable

Custodia•a duty to keep thing safe:

•the debtor becomes liable if he has not prevented the loss of the thing

•the only circumstance that excludes liability is force-majeure

•yet, the efforts of the debtor are not examined, the mere fact that the thing has been lost, makes him liable

•liability incurred in some typical cases, in which it was presumed a certain degree of care would always prevent the loss:

Custodia•a duty to keep thing safe:

•the debtor becomes liable if he has not prevented the loss of the thing

•the only circumstance that excludes liability is force-majeure

•yet, the efforts of the debtor are not examined, the mere fact that the thing has been lost, makes him liable

•liability incurred in some typical cases, in which it was presumed a certain degree of care would always prevent the loss:

•theft, destruction by animals or other party

Custodia

•Schulz:

•[The Debtor] was absolutely liable for certain typical accidents which were regarded as avoidable by properly watching and guarding the borrowed thing, and on the other hand

•he was not liable for other typical accidents which were invariably regarded as not avoidable by the exercise of care’

Modern divisions

Strict liability vs. liability for negligence

based on breach of a duty– fault based liability (subjective liability)

MutuumG. 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.

MutuumG. 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.

What objects may be given as a loan?

MutuumG. 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.

What objects may be given as a loan?What is the debtor’s liability?

MutuumG. 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.

What objects may be given as a loan?What is the debtor’s liability?Why?

MutuumG. 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.

What objects may be given as a loan?What is the debtor’s liability?Why?

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.

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.

Reconstruct the two cases.

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.

Reconstruct the two cases.Why so?

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.

Reconstruct the two cases.Why so?What are the rules concerning interest in loans?

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.

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.

A stipulation for interest is needed to create another civil law ground for the action.

Interest

Interest

•Mutuum: an amicable contract?

Interest

•Mutuum: an amicable contract?

•1/12 in the Law of Twelve Tables: how much was that?

Interest

•Mutuum: an amicable contract?

•1/12 in the Law of Twelve Tables: how much was that?

•Loans in kind (grain)

Interest

•Mutuum: an amicable contract?

•1/12 in the Law of Twelve Tables: how much was that?

•Loans in kind (grain)

•Maritime Loan (Faenus nauticum)

•On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.

•On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.

•1. Imagine that the heirs did not know that the mule was lent. They do not want to give the animal back. Advice Pulcher, whom should he sue and how?

•On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.

•1. Imagine that the heirs did not know that the mule was lent. They do not want to give the animal back. Advice Pulcher, whom should he sue and how?

•2. Will the solution under (1) change, if the mule, being pastured on a meadow of Onesimos’ farm was stolen on the Kalends of September by an unknown thief? Why?

•On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.

•1. Imagine that the heirs did not know that the mule was lent. They do not want to give the animal back. Advice Pulcher, whom should he sue and how?

•2. Will the solution under (1) change, if the mule, being pastured on a meadow of Onesimos’ farm was stolen on the Kalends of September by an unknown thief? Why?

•3. What if the heirs, having restored the mule, found out that their father had paid 120 denari of veterinarian expenses. What may each of them do? When and why?

•On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.

•1. Imagine that the heirs did not know that the mule was lent. They do not want to give the animal back. Advice Pulcher, whom should he sue and how?

•2. Will the solution under (1) change, if the mule, being pastured on a meadow of Onesimos’ farm was stolen on the Kalends of September by an unknown thief? Why?

•3. What if the heirs, having restored the mule, found out that their father had paid 120 denari of veterinarian expenses. What may each of them do? When and why?

•4. Let us assume that the heirs, not knowing that the mule did not belong to their father sold it Gaius Aquilius Cinnamus. What is his legal position and why?

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 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.

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 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.

D.12.1.15: SOME SINGULAR RULES (the ficticious datio)

My DEBTOR

ME YOU

iuss

um (

orde

r)

My DEBTOR

ME YOU

datio

pecuniae

iuss

um (

orde

r)

My DEBTOR

ME YOU

datio

pecuniae

iuss

um (

orde

r)

My DEBTOR

MEloan for consumption

YOU

datio

pecuniae

iuss

um (

orde

r)

My DEBTOR

MEloan for consumption

YOU fic

titio

us t

rans

fer I

datio

pecuniae

iuss

um (

orde

r)

My DEBTOR

MEloan for consumption

YOU fic

titio

us t

rans

fer I

fictitious transfer II

TRANSFER

datio

pecuniae

iuss

um (

orde

r)

My DEBTOR

MEloan for consumption

YOU fic

titio

us t

rans

fer I

fictitious transfer II

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 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.

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 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.

D.12.1.15: SOME SINGULAR RULES (the ficticious datio)

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

solutiomandatum

Ego

Tu

Ego

Tu

solutio

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

solutio

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

solutio

Ego

Tu

datiomandatum

Ego

Tu

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

mandatum

Ego

Tu

Ego

Tu

Datio

fict

icia

Imandatum

Ego

Tu

Ego

Tu

Datio

fict

icia

I

Datio

fict

icia

II

mandatum

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.

D.12.1.11 pr.: Contractus mohatrae Ulpian, 26 book on the Edict:

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.

D.12.1.11 pr.: Contractus mohatrae Ulpian, 26 book on the Edict:

Contractus mohatrae

A B

Contractus mohatrae

A B

Contractus mohatrae

A B

A B

Contractus mohatrae

A B

1000A B

Contractus mohatrae

A B

1000A B

Contractus mohatrae

A B

1000

A B

A B

Contractus mohatrae

A B

1000

A BA B

A B

Contractus mohatrae

A B

1000

A BA B

A B

Contractus mohatrae

A B

1000

A BA B

A B

Contractus mohatrae

A B

1000

A BA B

A B 800

Contractus mohatrae

A B

1000

A BA B

A B 800

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 possession was initiated by will (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him.

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 possession was initiated by will (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him.

D. 12.1.10: Ulpian, Edict, book 2

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 possession was initiated by will (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him.

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.

D. 16.3.26  Paulus libro quarto responsorum

16.3.26  Paulus libro quarto responsorum. Titius ita cavit: ἜλửỮον, ₫ửὶ ἔχω ựἰς λόữον πửρử₫ửƯ̆ή₫ỷς τὰ προữựữρửμμένử τοῦ ἀρữυρίου Ựựνửρίử μυρίử, ₫ửὶ πάντử ποư̆ήσω, ₫ửὶ συμφωνῶ ₫ửὶ ὡμολόữỷσử, ὡς προữέữρửπτửư̆· ₫ửὶ συνựƯ̆έμỷν χορỷữῆσƯ̆ửư̆ σοư̆ τό₫ον ἑ₫άστου μỷνὸς ὀỮόλους τέσσửρửς μέχρư̆ τῆς ἀποỰόσựως πửντὸς τοῦ ἀρữυρίου. Quaero, an usurae peti possunt. Paulus respondit eum contractum de quo quaeritur depositae pecuniae modum excedere, et ideo secundum conventionem usurae quoque actione depositi peti possunt

D. 16.3.26   Paul, 4th book of Answers

(1) Lucius Titius made the following statement: "I have received, and have in my hands as a deposit the sum of ten thousand denarii of silver, and I promise and bind myself to return all the said amount, as agreed upon between us; and, in accordance with the contract entered into, I will pay you every month four oboli for each pound by way of interest, until payment of the entire sum has been made." I ask whether interest can be demanded? Paulus has answered t that the contract that is under the scrutiny here, exceeds the amount of the money deposited and hence in accordance with the agreement, interest can be claimed in an action on deposit.

Marcus gave 1000 to Titius in deposit and left to Africa. A couples of months later Titius asked him in a letter, whether 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, greeting, I hope I find you in good health. you may use my money provided that you repay me with 5% interest. Farewell”.

The day after the letter-bearer arrived to Titius’ house, it was turned into burning ruins by a lighting bolt. How much does he have to pay back to Marcus? What actions may be used?

What if Marcus allowed Titius to use the money upon delivering it to him?

Some Practical Implications

A credit from Puteoli

TPSulp. 55, tab I, pag. 2 (graphio, scriptura interior)

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]u- latus est S[e]x(tus) Gr[a]nius [Numerius] [spopondi P(ublius) Vergil]ius A[mpliatus.]

[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.] Actum Puteo[lis].

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.

Datio & nume-ratio pecuniae

Datio & nume-ratio pecuniae MUTUUM

Datio & nume-ratio pecuniae MUTUUM

Datio & nume-ratio pecuniae MUTUUM

Datio & nume-ratio pecuniae MUTUUM

Spondes?

Datio & nume-ratio pecuniae MUTUUM

Spondes?Spondeo

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

SPONSIO

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

SPONSIO

conditio certae creditae pecuniae

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

SPONSIO

conditio certae creditae pecuniae

KA

SER

: Kom

binierter/H

ybridvertrag

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

SPONSIO

conditio certae creditae pecuniae

KA

SER

: Kom

binierter/H

ybridvertrag

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

SPONSIO

CHIROGRAPHUM

conditio certae creditae pecuniae

KA

SER

: Kom

binierter/H

ybridvertrag

Datio & nume-ratio pecuniae MUTUUM Interrogatio

& responsio

Spondes?Spondeo

SPONSIO

CHIROGRAPHUM

conditio certae creditae pecuniae

KA

SER

: Kom

binierter/H

ybridvertrag

134. Praeterea litterarum obligatio fieri uidetur chirografis et syngrafis, id est, si quis debere se aut daturum se scribat, ita

scilicet, si eo nomine stipulatio non fiat. quod genus obligationis proprium peregrinorum est.

LABEOD. 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 συνάλλαγµα 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 ‘acted’ is a general word whether something is acted by words or things, like in stipulation or computation. ‘Contracted’ denotes bilateral obligation which the Greeks call synallagma, as for instance, sale or purchase, hire or partnership. ‘Carried out’ means a thing done without words.

COLLATERALS IN GENERAL

STIPULATION:PERSONAL COLLATERALS

REAL SECURITIES:PLEDGE/HYPOTHEC

PERSONAL COLLATERAL

✦ Creditor: Do you promise to give me 1000?

✦ Debtor: I do promise.

✦ Creditor: Do you promise the same?

✦ Guarantor: I do promise.

✦ Effect:

✦ Two parallel obligations (obviously indivisible)

TYPES AND DIFFERENCES

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

✦ B. Fidepromissio (Fide promittis/Fide Promitto)

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

✦ B. Fidepromissio (Fide promittis/Fide Promitto)

✦ C. Fideiussio (Fide iubes?/Fide iubeo)

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

✦ B. Fidepromissio (Fide promittis/Fide Promitto)

✦ C. Fideiussio (Fide iubes?/Fide iubeo)

✦ Citizens (A), aliens (B), final form (C)

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

✦ B. Fidepromissio (Fide promittis/Fide Promitto)

✦ C. Fideiussio (Fide iubes?/Fide iubeo)

✦ Citizens (A), aliens (B), final form (C)

✦ Temporality (up to two years)/non inheritability in (A) & (B)

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

✦ B. Fidepromissio (Fide promittis/Fide Promitto)

✦ C. Fideiussio (Fide iubes?/Fide iubeo)

✦ Citizens (A), aliens (B), final form (C)

✦ Temporality (up to two years)/non inheritability in (A) & (B)

✦ only other verbal obligations may be secreted by (A) & (B)

TYPES AND DIFFERENCES✦ A. Sponsio (Spondes?/Spondeo)

✦ B. Fidepromissio (Fide promittis/Fide Promitto)

✦ C. Fideiussio (Fide iubes?/Fide iubeo)

✦ Citizens (A), aliens (B), final form (C)

✦ Temporality (up to two years)/non inheritability in (A) & (B)

✦ only other verbal obligations may be secreted by (A) & (B)

Real securities

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

✦ Usureceptio fiduciae causa

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

✦ Usureceptio fiduciae causa

✦ Actio fiduciae

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

✦ Usureceptio fiduciae causa

✦ Actio fiduciae

✦ Pledge (pignus)

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

✦ Usureceptio fiduciae causa

✦ Actio fiduciae

✦ Pledge (pignus)

✦ Mortgage (hypotheca)

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

✦ Usureceptio fiduciae causa

✦ Actio fiduciae

✦ Pledge (pignus)

✦ Mortgage (hypotheca)

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Real securities

✦ Fiducia

✦ Mancipatio

✦ Usureceptio fiduciae causa

✦ Actio fiduciae

✦ Pledge (pignus)

✦ Mortgage (hypotheca)

P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.

Mortgage

Mortgage

✦ ? Hellenistic origins?

Mortgage

✦ ? Hellenistic origins?✦ Roman application:

Mortgage

✦ ? Hellenistic origins?✦ Roman application:

✦ Lease of Land

Mortgage

✦ ? Hellenistic origins?✦ Roman application:

✦ Lease of Land✦ Practicability

Mortgage

✦ ? Hellenistic origins?✦ Roman application:

✦ Lease of Land✦ Practicability✦ Fulfilment of mortgage

Mortgage

✦ ? Hellenistic origins?✦ Roman application:

✦ Lease of Land✦ Practicability✦ Fulfilment of mortgage ✦ Interdictum Salvianum

Mortgage

✦ ? Hellenistic origins?✦ Roman application:

✦ Lease of Land✦ Practicability✦ Fulfilment of mortgage ✦ Interdictum Salvianum✦ Actio Serviana

PLEDGE

PLEDGE

• Constitution

PLEDGE

• Constitution

• Contract of pledge

PLEDGE

• Constitution

• Contract of pledge

• Made by handing over of the thing pledged

PLEDGE

• Constitution

• Contract of pledge

• Made by handing over of the thing pledged

• Protection

EXECUTION OF REAL SECURITIES

• lex commissoria – forfeiture clause

• pactum de vendendo [tacit element of the contract of pledge in classical times]

• The pledgee sells the pledge, deducts his debt from the price and turns what is left over the the pledger

• pactum antichreticum - right to use.

ADDITIONAL AGREEMENTS IN THE CONTRACT OF PLEDGE

Application✦ D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be

remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.

Gospel of the Wife of Jesus

Chag Pesach Kasher veSameach

Chag Pesach Kasher veSameach

!XristÚw én°sth1. élhy≈w én°sth1

Wesołych Swiat!Happy Easter

!XristÚw én°sth1. élhy≈w én°sth1

Wesołych Swiat!Happy Easter