SAINT AMBROSE AND THE THEORY OF ASPECT

The texts to be discussed are D.12.1.11pr,⁵⁵ D.19.5.19pr,⁵⁶ D.17.1.34pr,⁵⁷

⁵⁵ ‘Ulpianus libro vicensimo sexto ad edictum. Rogasti me, ut tibi pecuniam crederem: ego cum non haberem, lancem tibi dedi vel massam auri, ut eam venderes et nummis utereris.

Si vendideris, puto mutuam pecuniam factam. Quod si lancem vel massam sine tua culpa perdideris prius quam venderes, utrum mihi an tibi perierit, quaestionis est. mihi videtur Nervae distinctio verissima existimantis multum interesse, venalem habui hanc lancem vel massam nec ne, ut, si venalem habui, mihi perierit, quemadmodum si alii dedissem vendendam: quod si non fui proposito hoc ut venderem, sed haec causa fuit vendendi, ut tu utereris, tibi eam perisse, et maxime si sine usuris credidi’ (Ulpian in his twenty-sixth book of his commentary on the Edict. You asked me to lend you money; because I had no money I gave you a dish or a piece of gold so you could sell this and use the money. If you sold it, I think that the money made is owed as a loan. What is the position if the dish or the lump of gold was lost without your fault before you sold it, does the loss fall upon me or upon you. It is my opinion that the distinction made by Nerva is perfectly correct, namely that the point of importance is whether I had the dish or the lump of gold for sale or not. If I had had it for sale, the loss is mine in the same manner as if I had given it to someone else to sell; but if it has not been my intention to sell it, but the only reason of the sale was that you might use the proceeds, you must carry the loss, especially if I lent the money to you interest free).

⁵⁶ ‘Ulpianus libro trigesimo primo ad edictum. Rogasti me ut tibi nummos mutuos darem: ego cum non haberem, dedi tibi rem vendendam, ut pretio utereris. Si non vendidisti aut vendidisti quidem, pecuniam autem non accepisti, tutius est ita agere, ut Labeo ait, praescriptis verbis, quasi negotio quodam inter nos gesto proprii contractus’ (Ulpian in the thirty-first book of his commentary on the Edict.

You asked me to lend you money: because I did not have any, I gave you a thing to sell so that you could use the price. If you did not sell it or sold it but did not accept the money as a loan, it is safer to proceed, as Labeo held, with the actio praescriptis verbis as if whatever transaction performed between us had been a special contract).

⁵⁷ ‘Africanus libro octavo quaestionum. Qui negotia Lucii Titii procurabat, is, cum a debitoribus eius pecuniam exegisset, epistulam ad eum emisit, qua significaret certam summam ex administratione apud se esse eamque creditam sibi se debiturum eum usuris semissibus: quaesitum est, an ex ea causa credita pecunia peti possit et an usurae peti possint. respondit non esse creditam: alioquin dicendum ex omni contractu nuda pactione pecuniam creditam fieri posse. nec huic simile esse, quod, si pecuniam apud te depositam convenerit ut creditam habeas, credita fiat, quia tunc nummi, qui mei erant, tui fiunt: item quod, si a debitore meo iussero te accipere pecuniam, credita fiat, id enim benigne receptum est. his argumentum esse eum, qui, cum mutuam pecuniam dare vellet, argentum vendendum dedisset, nihilo- magis pecuniam creditam recte petiturum: et tamen pecuniam ex argento redactam periculo eius fore, qui accepisset argentum’ (Africanus in the eighth book of his Questions. When the procurator of Lucius Titius had collected money from the debtors, he sent him a letter informing him that he held a certain sum in terms of his administration and that if this was lent to him he would pay six percent interest. It was asked whether from such cause the money could be claimed as lent and whether the interest could be claimed. He (Julianus) opined that the money was not lent, because otherwise it could be said that money from any contract could be made into a loan by mere agreement. And this was not similar to the case

C. 4.2.8,^[713] ^{^[714] and C.4.32.25.^[715] The last two texts lead^[716] to Saint Ambrose’s De Tobia, sermons on the story of Tobia, directed against usury.^[717]}

The facts in the Digest texts are briefly that A asked B for a loan of money, but B had no money.

Instead, B gave A a valuable object to sell so he could use the money from the sale. The legal questions under discussion revolved around risk, in respect of the object prior to the sale, or the risk of the money after the sale, or how to get the object or the money back when A did not sell or use the money. The answer depends on the question of which contract or contracts the parties had concluded, but since this was never directly asked, the texts are silent on this point. The questions addressed to the imperial chancery in C.4.2.8 were different,^[718] and indicate the context and purpose of such transactions. At last, a room with a view is offered by Saint Ambrose. His text clearly illustrates that moneylenders were in actual fact delivering goods rather than cash to their clients. It may be argued that his words are not completely logical, since the obvious translation of ‘Sed pro amico dispendium non reformidabo, cum reddideris, reficiam’ is ‘But for a friend, I shall not shirk the loss, when you return it, I shall repair it’, which is not congruent with the fact that the debtor is to sell the object. However, the translation ‘For a friend I will shun the loss, when you pay me back, I will make it back’ may be open to philological debate, but is supported by the legal texts and reveals a stratagem to avoid the limits on lawful interest.^[719]

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Source: Plessis P.J. du. (ed.). New Frontiers: Law and Society in the Roman World. Edinburgh University Press,2013. — 256 p.. 2013

SAINT AMBROSE AND THE THEORY OF ASPECT

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