Mutuum (Loan for Consumption)

Actions with single causal events, such as sale, hire and so on, fit easily into the non-actional classification dominated by contract and delict. Each event fits into the category of contract or of delict or of miscel­laneous other causes, and it carries its actional regime with it.

This is what the condictio says:

Iudex... esto. Si paret Numerium Negidium Aulo Agerio sestertium decem milia dare oportere,

Let... be judge. If it appears that Numerius Negidius ought-at-civil-law to give Aulus Agerius ten thousand sesterces,

iudex Numerium Negidium Aulo Agerio sestertium decem milia condemnato; si non paret absolvito.

for ten thousand sesterces let the judge condemn Numerius Negidius to Aulus Agerius; if it does not appear, let him absolve.

The claim here is for the render of money. For a certum in kind there had to be a slight change in order to get the condemnation into money. So if �ten measures of best African grain' replaces the money in the intentio, the condemnatio has to become:

as much as that matter is worth for so much in money let the judge condemn Numerius Negidius to Aulus Agerius; if it does not appear let him absolve.

The formula puts the burden on the plaintiff to prove before the iudex some event which as a matter of law does amount to an â€?ought-at-civil- law to give...'. He has to prove some acknowledged cause of indebt­edness. We have already seen that stipulatio and expensilatio are events in the contractual part of the spectrum of such causes. The non­contractual part of the spectrum will be considered in connexion with the quasi categories and the miscellaneous residue of events beyond contract and wrongs.¹ Mutuum is the third and last event in the con­tractual part of the spectrum.

you establish the ought-at-civil-law-to-give, the old ius civile obligation which the words of the condictio assert.

â€?Lend’ and â€?borrow’ in our usage cover two transactions. â€?May I borrow your pen?’ This leads to a temporary transfer of the pen. The pen itself is to be returned, and there is no suggestion that the borrower acquires ownership of the pen. While I am writing with it, it remains yours. That is commodatum, loan for use. â€?May I borrow £50?’ Quite different. Now the £50 will be permanently transferred in the sense that the lender will never see those coins or notes again. There is to be returned, not the original receipt, but its equivalent, another £50. And here ownership does pass. This is not confined to money. â€?May I borrow six eggs and a pint of milk?’ Just as with the £50, these eggs and this bottle of milk must become mine. I will give back substitutes. This second type of loan is mutuum. We translate it as â€?loan-for- consumption’. Not very elegant and not quite accurate, in the sense that money is not naturally â€?consumed?’, and if I borrow eggs I do not necessarily mean to â€?consume’ them. Perhaps I want to give them away or sell them or throw them at a politician. It makes no difference. So â€?for consumption’ is an approximation. Its role is to set up the contrast between the two kinds of loan. Is there a better translation? It is more exact to say â€?loan where repayment is to be made by way of exchange in kind’. But that is cumbersome. â€?Exchange-loan’ might be acceptable but is not self-explanatory.

Paul says that the word mutuum is used because in this kind of loan the lending is such that de meo tuumfit (because what was mine becomes yours): D.12.1.2.1 (Paul, 28 On the Edict). Justinian repeats this: J.3.14 pr. This assertion that mutuum is really meo-tuum (mine-thine) makes a good point but is bad etymology. The word really belongs with the family based on the verb mutare which one learns first as �to change’.

Things which are normally handled by number, weight or measure and which if lent are therefore lent for return in kind and not in specie (money, apples, cloth) can in a rare case be lent the other way, for specific return. The play you are putting on may need among its props a bottle of whisky and a basket of apples. Coins and stamps may be exhibition-worthy. It is perfectly possible to borrow things usually

returned in kind on the understanding that they shall be returned in specie. The intent of the parties, not the nature of the res, determines the character of the transaction. If the parties intend specific return the loan will not be mutuum but commodatum. This has important consequences. If you bring the condictio and the greengrocer shows that the deal was commodatum you will lose since commodatum does not give rise to a certum dare oportere. That is a pleading point and one which ceases to be relevant after the abandonment of the formulary system of litigation. But there are substantial points too. If the apples you borrowed went next minute under the wheels of a cab the whole pattern of inquiry will be different according as your borrowing was mutuum or commo­datum. We will come back to that.

Mutuum always involves an exchange of exact equivalence in kind and quality. If the agreement is that I shall give back something different, the transaction will be barter (permutatio) or even sale. Nam si aliud genus, veluti utpro tritico vinum recipiamus, non erit mutuum: For if a different genus [is involved] as that for corn we should get back wine, it will not be mutuum (D.12.1.2 pr. = Paul, 28 On the Edict).

This discussion resembles the treatment of the demonstratio in relation to the formulae of actions on sale, hire and so on. What is a mutuum and what is not quite a mutuum? But the condictio has no demonstratio, no â€?whereas’ clause stating the event from which the obligations are supposed to have arisen. The word â€?abstract’ is used to indicate this absence of grounds stated. We only re-create the pattern of the earlier discussions by concentrating on one particular ground, here mutuum. Having done that can we turn, as previously, to â€?What follows?’ Not really. Because only one thing follows. The single consequence is that which the formula describes in its fixed and abstract intentio. Slipped back into direct speech, the formula is asking â€?Does it appear that the defendant ought-at-civil-law to give £20 (or 20 kilos of apples)?’ When the mutuum is proved—or any other ground—that is what follows: it does appear that he owes the £20. And then the condemnatio follows up in exactly the same terms.

This means that you should not really approach mutuum by asking first what it is and then what follows. You should always be asking what amounts to this obligation to pay £20. What is the totality of the event which supports that conclusion? Take the issue of interest. It is elementary that interest cannot be recovered under mutuum. But the truer way (that is, truer to the classical eye) to perceive that is to suppose a formula in which the defendant is said to owe £iio. And then to ask whether the plaintiff can recover if he shows that one year ago he lent the defendant £100 with a pact annexed for the payment of io per cent interest. And the answer is found in the fact that the formula puts the question on the basis of the letter of the ius civile unsupplemented by a reference to good faith. Strictum ius, deriving from ancient juristic interpretation, did not give effect to informal pacts. If the plaintiff wanted to show that he was entitled to his i0 per cent he could do it by proving a loan of 100 and a formal contract, a stipulatio, for interest.

Under the same formula asserting an obligation to pay £ii0, what happens if the plaintiff did lend that sum but ten seconds later all the money went, literally, down the drain? Or suppose the claim is for a bottle of wine, and he says that he dropped it before he could drink it. The defendant remains liable. There is no need to ask any questions about fault or standards or care. What is lent under mutuum becomes the property of the borrower. All the risks are on him. That is, as any owner he can look for someone to sue for causing him loss but he cannot use the existence of his contract of loan to shift the loss to the lender. Even if the money was lost by violent robbery or natural disaster (a sudden whirlwind) the lender must repay. What the borrower does once the loan is his is nothing to the lender. Neither bad luck nor good. If the borrower of i0 buys a trinket which turns out to be a treasure worth io,ooo, the lender has no hope of a share.

There is one problem which arises when the loan is not of money. Take the standpoint of a iudex who finds himself handling a formula which says that the defendant owes wine in a given quantity. If it says nothing about quality, how can he condemn for the value of very good wine even if very good wine was lent? I am not sure how this problem would have been dealt with. The judge's difficulty may have been eased by the fact that the plaintiff was allowed to put a value on his claim under oath. But the proper way out was not to be vague in the pleading. You should say in your pleading what quality you lent within the genus which you lent. The model formula said �best of African grain'. Narrow interpretation characteristic of strictum ius did not prevent there being an implication that the obligation was to repay the same quality as was lent. D.12.1.3 (Pomponius, 27 On Sabinus):

When we give something by way of mutuum, even if we fail to provide expressly for a return of the same quality, the debtor may not give back something worse albeit of the same genus, as new wine for old: for in contracting what is intended is to be taken as provided for, and what is intended here is understood to be that the repayment should be both of the same genus and of the same quality as what was given.