RISK AND TRANSFORMATION OF CONTRACT

The question concerning the risk and transformation of a contract had been addressed by Ulpian in D.12.1.4pr.⁶⁹ In this case money was given in deposit with the arrangement that it could be used and the effect of this arrangement on the allocation of risk was discussed.⁷⁰ Even prior to use, the deposit was held to be at the risk of the receiver, which deviation from the normal risk rule Ulpian motivated with the analogy that he who has received a thing to sell in order to use the money, holds the object at his own risk.

D. 12.1.9.9⁷¹ and D.12.1.10,⁷² similar situations were addressed along differ­ent lines. In the first text, a straightforward deposit is transformed in what

⁶⁸ ‘Law reports’ is used tongue in cheek. However, from the days of Labeo (ob. c. 10 CE; referred to by Ulpian in D.19.5.19pr), Nerva (either father (ob. 33 CE) or son (praetor desig­nate 65 CE); referred to by Ulpian in D.12.1.11pr until Ulpian (c 170-223 CE; D.12.11.1pr and D. 19.5.19pr) these ‘friends’ were consulting jurists, whose opinions were in writing and saved. C.4.2.8 dates from 293 CE.

⁶⁹ ‘Ulpianus libro trigensimo quarto ad Sabinum. Si quis nec causam nec propositum faene- randi habuerit et tu empturus praedia desideraveris mutuam pecuniam nec volueris creditae nomine antequam emisses suscipere atque ita creditor, quia necessitate forte proficiscendi habebat, deposuerit apud te hanc eandem pecuniam, ut, si emisses, crediti nomine obligatus esses, hoc depositum periculo est eius qui suscepit. Nam et qui rem vendendam acceperit, ut pretio uteretur, periculo suo rem habebit’ (Ulpian in his thirty-fourth book of his commen­tary on Sabinus. In the case of a person who has no reason or made no proposal to lend out money at interest, and you who are on the point of buying land and are desirous to borrow money; but you do not want to owe this money before you have bought the property; in con­sequence, the creditor, who may have an urgent reason to leave, has deposited that money with you, with the arrangement that, if you should buy, you will be liable for the credit.

⁷⁰ Thomas (2012) (forthcoming).

⁷¹ D.12.1.9 Ulpianus libro vicensimo sexto ad edictum: ‘Deposui apud te decem, postea permisi tibi uti: Nerva Proculus etiam antequam moveantur, condicere quasi mutua tibi haec posse aiunt, et est verum, ut et Marcello videtur: animo enim coepit possidere. Ergo transit periculum ad eum, qui mutuam rogavit et poterit ei condici’ (Ulpian in the twenty­sixth book of his commentary on the edict. I deposited ten with you, and later I allowed you to use the money; Nerva and Proculus hold that I can claim the money with a condictio from you, even before it was used, as if it had been lent. And this is correct and Marcellus is of the same opinion; because you had already become the possessor with your intention, in your mind. Therefore the risk passes on him, who asked for the loan, and the condictio lays against him).

⁷² D.12.1.10 Ulpianus libro secundo ad edictum: ‘Quod si ab initio, cum deponerem, uti tibi si voles permisero, creditam non esse antequam mota sit, quoniam debitu iri non est certum’ (Ulpian in his second book of his commentary on the edict 10. If I allowed you from the beginning when I deposited the money with you to use it, if you wanted to, the money is not owed before the money is used, because it is not certain that anything will be owed). later would become known as a depositum irregulare.^[724] Ulpian follows Nerva and Proculus who held that the condictio^[725] became available as soon as the parties agreed that the deposited money could be used. Thus, before usage the contractual relationship between the parties changed from depositum into mutuum. Marcellus held the same opinion and motivated this with the argument that he who held the money had already become possessor animo. In the following text, Ulpian holds that if the depositor had allowed use of the money from the beginning, the money only becomes owed in terms of mutuum, once it has been used, arguing that it is not certain whether it will be owed. Why this argument was not applied in the previous text and in D.12.1.4pr is not made clear. Furthermore, in D.12.11.1pr, Ulpian on the authority of Nerva introduced the distinction whether the object had been for sale or not.^[726] Another inconsistency is found where his opinion that if the object is sold, the money made is owed as a loan^[727] was changed in D.19.5.19pr.

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