Mutuum and stipulatio

A further, very important characteristic of mutuum is the fact that the contract gave rise to only one action (the condictio of the lender against the recipient of the loan) and consequently only to one obligation (namely that of the borrower to return res aliae eiusdam naturae).

Thus, especially, a claim for interest could not be enforced. The condictio was, after all, an actio stricti iuris. The judge therefore did not have any discretion to give effect to informal, ancillary agreements between the parties, or to equitable considerations; he could only condemn the borrower in as much as the latter had received from the lender. Strictly speaking, mutuum was thus a unilaterally binding, gratuitous contract.

^f' As to the term "fungibles" (derived from the Latin "fungibilcs"), see Pothier, Traite du contra! du pre! de consomption. n. 25: "Earum nature est, ut aliae aliarum ejusdem generis rerum vice fungantur."

^D Cf. e.g. Nicholas, Introduction, p.167.

¹ Inst. DI, 14, 2.

^E Cf. C. 4, 24, 9; also Ulp. D. 50, 17, 23 in fine. This remains true as long as there is no specific reason to shift the loss. Such shift is justified normally on the basis of culpa or dolus (delictual liability), but there are certain instances where even accidental loss does not lie with the owner. On the precise ambit of casum sentit dominus, see Andreas Wacke, "Gefahrerhohung als Besitzerverschulden", in: Festschrift fur Heinz Hubner (1984), pp. 670 sqq-

In commercial practice, however, few people were (and still are) prepared to make loans on an entirely altruistic basis.¹³ Yet, if the lender wished to receive interest on the capital loaned, he had to extract from the borrower a promise in the form of a stipulation,¹⁴ i.e. the parties had to enter into a separate, additional contract.

This is in fact what usually happened; and since a stipulation had to be made anyway, if the loan was to be given for interest, the parties usually took the opportunity to incorporate the principal debt as well, so that the borrower's obligation to return the capital was very often reaffirmed by way of stipulation.¹⁵ At the same time, this was a convenient way to make certain incidental provisions binding—for instance, those relating to the time of repayment or the place of performance. Under these circumstances the transaction was re et verbis¹⁶ rather than merely re: datio and stipulatio were two acts, both giving rise to the obligation to restore the capital, and both, incidentally, enforceable by means of the condictio. Naturally, however, performance had to be made only once, and in case of failure of performance the creditor could also bring the condictio only once. This he probably did on the basis of the stipulatio, for the Roman lawyers seem to have been of the opinion that the obligatio re was absorbed by the obligatio verbis:

"Cum enim pecunia mutua data stipulamur, non puto obligationem numeratione nasci et deinde cam stipulatione novari, quia id agitur, ut sola stipulatio teneat, et inagis implendae stipulations gratia numeratio intellegenda est fieri."¹⁷

" Even a loan without interest is, however, not always (perhaps even: not usually) made for purely altruistic reasons. Roman society was characterized by a network of (informal) relationships which could either be created by, or which engendered a (moral) duty to grant, a (seemingly) gratuitous loan. Thus, for instance, loans could be given not in order to receive interest but to gain political influence, to generate loyalty or to create a situation of dependence. Furthermore, the usual duties arising from the Roman concept of "amicitia" (on which cf. e.g. supra, p. 115) must be taken into consideration. Both the granting of a (usually short-term) loan in order to allow the borrower to cope with a momentary problem of liquidity and the (informal) '"remuneration" of such friendly service with other services or favours were natural implications of the officium amici.

The average Roman paterfamilias did not go to a professional moneylender (fenerator) but turned to his amici when he was in need of capital. For all details, particularly the social and economic background as it can be reconstructed on the basis of Roman literary sources, cf. Alfons Burge, "Vertrag und personale Abhängigkeiten im Rom der spatem Republik und der frühen Kaiserzeit", (1980) 97 ZSS 114 sqq. On the (low) social position of the fencratores (and on banking business in general) cf. idem, "Fiktion und Wirklichkeit: Soziale und rechtliche Strukturen des romischen Bankwesens", (1987) 104 ZSS 488 sqq., 495 sqq. The fact that credit was readily available through private connections substituted for (and in turn contributed to) the lack of a large-scaie banking system in Rome. Cf. also infra, pp. 217 sq.

^],Afr. 1). 19, 5, 24.

^B Cf. e.g. Paul. D. 12, 1, 40; Scaev. D. 45, 1, 122, 1; Paul. D. 45, 1. 126. 2; Ulp. D. 46, 2, 6 1.

Ulp. D. 12, 1, 9, 3; Mod. D. 44, 7, 52 pr. These texts have often been regarded as spurious; cf., for example, Alfred Pernice, "Der sogenannte Realverbalkontrakt", (1892) 13 ZSS 246 sqq.; Schulz, CRL. p. 507; but see Max Kaser, "'Mutuum' und 'stipulatio'", in: Eranion G.S. Maridakis, vol. 1 (1963), pp. 155 sqq.

¹⁷ Pomp. D. 46, 2, 7; cf. Fritz Pringsheim, "Id quod actum est", (1961) 78 ZSS 79 sqq.; Kaser. Eranion Maridakis, pp. 157 sqq.

Of the above-mentioned incidental provisions, the fixing of a date for repayment of the capital is obviously of particular interest to a borrower. A loan transaction can hardly achieve its purpose if the capital has to be repaid immediately after it has been handed over by the lender to the borrower. Yet this was, strictly speaking, the case where the-mutuum was not accompanied or reaffirmed by a stipulation. For it was the datio that gave rise to the obligation to repay the capital, and this obligation came into effect immediately. The due date for repayment could, at least originally, not be deferred by the parties because whatever they might have agreed upon informally could not be considered in iure civili. This result was less inconvenient than it sounds, because mutuum was used, at first, between friends or neighbours for the purposes of short-term loans without interest.¹⁸ Here, social ties arising from amicitia and humanitas were strong enough to prevent the creditor from (ab-)using his formal position and bringing the condictio immediately. For commercial loan transactions the formal, but very dangerous, nexum was available.¹⁹ When it disappeared during the period of the Republic, mutuum took over this function too and became the universal loan transaction. But in the commercial context it was, in actual practice, always accompanied by a stipulation containing all the special arrangements of the parties.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Mutuum and stipulatio

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