Mutuum

Mutuum was a gratuitous loan for consumption of money or other things that were weighed, numbered or measured (such as wine, oil, corn, gold or silver).^[678] It was the oldest form of contractus re which originated from the old ius civile and therefore belonged to the category of the negotia stricti iuris.^[679] It was constituted by agreement and the transfer of ownership of an object to another person, on the understanding that the borrower would at a later stage return an object of the same kind, quality and quantity.^[680] The contract was deemed to be formed re because it became operative when the money or other things were transferred to the person to whom the loan was granted.

Mutuum was a unilateral contract as it imposed a duty only on one side. The person granting the loan acquired a personal right against the borrower, who was required to transfer to the lender (at a time expressly or impliedly agreed, or at a reasonable time after demand) an equivalent amount of money or things of the same kind and quality. The lender (who was the creditor) could enforce the obligation by means of a personal action known as condictio.^[681] The action was termed condictio certae creditae pecuniae where the loan consisted of money, while in the case of a loan of grain (triticum) or other fungibles it was called condictio triticaria. Insofar as the action was always directed at a specific object or a specific sum of money or amount of generic things it was also known, in its usual form, as condictio certae rei.^[682] In all cases only the precise amount or quantity that had been transferred could be reclaimed.

According to the senatus consultum Macedonianum, passed during the reign of Vespasian (ad 69-79), a loan of money to a filiusfamilias was forbidden.^[684] This enactment did not dictate that such a loan would be automatically null and void, but gave the son or his father the exceptio senatus consulti Macedoniani against the claim of the moneylender even after the son became sui iuris.^[685] Although such mutuum could not be enforced, it was construed as producing a natural obligation (obligatio naturalis) that ruled out the condictio indebiti^[686] and could invoke a civil obligation by novation (novatio)^[687] when the son was sui iuris.

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