1. Commodatum and mutuum
Mutuum was available only where a party wanted to borrow money or fungibles; an equivalent in kind had to be returned. Where the lender, on the other hand, expected the very same thing that he had handed over to the borrower to be returned, the contract was not mutuum but commodatum.
Commodatum was the gratuitous loan of a thing for use.[957] Like mutuum, it was a real contract, that is, it could not be created by a formless pact; nor could the lender bind himself by way of letter or any other means (except, of course, by way of stipulation) to grant a loan.[958] The contract of commodatum, and with it the obligation to restore, came into existence only once the object had been handed over.[959] This object was normally a non-fungible thing. However, a commodatum could come into existence in respect of fungibles too. The famous textbook examples are the food to be used as a show-dish or the cash to be spread out on a moneylender's table: "Non potest commodari id quod usu consumitur, nisi forte ad pompam vel ostentationem"[960]—consumable goods were normally lent by way of mutuum; if, however, they were not intended to be consumed, but merely to be displayed for the purpose of "pomp or ostentation" and then to be handed back again, a commodatum came into existence.Thus we find two different forms of loan in Roman (and in modem) law: the one where the individual thing is lent (and has to be restored), the other where it is not the money or fungible object itself, but rather its value that is lent. Whereas, however, the terminological distinction drawn by the Roman lawyers "very happily expresses the fundamental difference" between these two forms of loan, "our poverty (sc: the English language) is reduced to confound (them) under the vague and common appellation of a loan".[961] Or, to quote Pollock and Maitland:
"To this day Englishmen are without words which neatly mark this distinction. We lend books and halfcrowns to borrowers; we hope to see the same books again, but not the same halfcrowns; still in either case there is a loan."[962]
On the model of the French pret a usage[963] [964] the term "loan for use" has been introduced by Sir William Jones in his Essay on the Law of Bailments1*—the first English monograph, incidentally, which can properly be called a legal treatise.[965] The German Code distinguishes between Leihe[966] (commodatum) and Darlehen[967]* (mutuum); the somewhat artificial term of Darlehen, alien to Germanic law,[968] has never managed to establish itself in common parlance.[969] 2.
More on the topic 1. Commodatum and mutuum:
- 2. Commodatum (Loan for Use)
- Commodatum
- History and gratuitous nature of commodatum
- The nature of mutuum
- Mutuum and stipulatio
- The consensual element of mutuum
- Mutuum
- COMMODATUM
- CHAPTER 7 Commodatum, Depositum, Pignus
- THE ROMAN CONTRACT OF MUTUUM
- PAR T III Mutuum