COMMON PRACTICE
The first striking fact is that the practice of giving a thing to sell when asked for a loan of money was well known among jurists. D.19.5.19pr dates from the early Empire and Labeo is not surprised at the facts, but could not place a label on the legal construct.
He accepted that some type of contract had been entered into and presumably advised to proceed with an actio in factum.[740] Ulpian concurred with this argument and neither jurist distinguished whether the object had been sold or not.[741] In D.17.1.34pr, Africanus relies on his mentor Julianus[742] to confirm that a loan of money cannot be concluded by mere agreement.[743] In the motivation, a distinction is made between this case and other instances in which the requirement of delivery had been relaxed, such as the agreement that deposited money could be borrowed,[744] or the instruction to receive money from another’s debtor.[745]The moneylender who gave silver instead of money was also mentioned and neither jurist considered the possibility of mutuum even after the sale, but agreed that the risk was on the ‘borrower’.
10.
More on the topic COMMON PRACTICE:
- A Practice of History and Histories of a Practice
- 4. Common mistake
- 3. Common elements
- THE RETREAT OF THE COMMON HERITAGE OF MANKIND
- Common error in nomine
- The contribution of (commercial) practice
- A Creation of Legal Practice
- COURT PRACTICE AS A SOURCE OF LAW
- Some distinctions between the academic study and the practice of law
- Protection of human rights by the common law
- A clash between theory and practice?