The consensual element of mutuum

(a) Consensus and rex interventio

Furthermore, even with regard to mutuum proper the consensual element came to be increasingly emphasized in the course of time. It is obvious that not every datio could give rise to a condictio.

"Non satis autem est dantis esse nummos et fieri accipientis, ut obligatio nascatur, sed etiam hoc animo dari et accipi, ut obligatio constituatur. itaque si quis pecuniam

^B Kaser, RPr I. p. 170; Watson, Evolution, pp. 9 sqq. Cf. also Kelly, (1970) 5 The Irish Jurist 156 sqq. (according to whom mutuum originated as barter) and Geoffrey MacCormack, "Gift, Debt, Obligation and the Real Contracts", (1985) 31 Labeo 139 sqq., who specifically links mutuum with gift.

® Cf. supra, pp. 4 sq. Nexum may have been immediately enforceable by execution, without prior lawsuit and judgment: c(. Kaser, Altromisches ins. pp. 119 sqq.; but see Ludwig Mitteis, "Uber das Nexum", (1901) 22 ZSS 96 sqq.; Max Kaser, '"Unmittelbare Vollstreckbarkeit' und Burgenregress", (1983) 100 ZSS 111. suam donandi causa dederit mihi, quamquam et donantis fuent et mea fiat, tarnen non obligabor ei, quia non hoc inter nos actum est."^[814]

This mental element, the animus, ut obligatio constituatur,^[815] for a long time merely qualified the purpose for which the datio had been niade; it was not a proper contractual agreement and left no room for the regulation of details concerning the loan.

A good example of how the classical Roman lawyers tried to give effect to what the parties had actually agreed upon—without, however, unduly prejudicing the "real" nature of mutuum—is provided by Ulp. D. 12, 1, 11, 1:

"Si tibi dedcro decern sic, ut novem debeas, Proculus ait, et recte, non amplius te ipso iure debere quam novem, sed si dedero, ut undecim debeas, putat Proculus amplius quam decern condici non posse."

Two cases are discussed in this fragment and in both there is a discrepancy between the real and the consensual aspect of the transaction.

(b) Ex meo tuumfacere

According to the pseudo-etymological basis of mutuum ("ex meo tuum"), there had to be a direct transfer of ownership from the creditor to the recipient of the loan. As Paulus put it figuratively, "item mutuum non potest esse, nisi proficiscitur pecunia"; ^[825] there can be no contract of mutuum, unless the coins "wander" (sc: from the hands of the creditor into those of the debtor). It is obvious that such a conceptually restricted view was bound to lead to cumbersome and very formalistic results. What, for instance, if the debtor was already in possession of the sum of money he wished to borrow because it had been deposited with him by the creditor at an earlier stage? Should one require the depositee under these circumstances to hand the money back to the depositor (thus discharging his obligation under the contract of depositum) only in order to have the very same sum returned to him immediately afterwards, now sub specie mutui? This would have been an inconvenient complication, to say the least.

"Singularia quaedam rcccpta sunt circa pccuniam crcditam. nam si tibi debitorcm mcum iussero dare pccuniam, obligaris mihi, quamvis mcos nummos non acceperis."^{[829] [830]}

The creditor ("ego") has ordered his debtor to pay the money to a third party ("tu") to whom he wished to lend it. A contract of mutuum is thereby created between the creditor and the third party, even though the latter has not received his money from the creditor/lender. The same conclusion had already been reached by lulianus: "... quod, si a debitore meo iussero te accipere pecuniam, credita fiat, id enim benigne receptum est.^1,36 If we compare this with his opinion regarding the previous case (depositum), we see that his reasoning no longer rests on the "ex meo tuum" basis.

Both lulianus and Africanus were not prepared, however, to extend this exception to other cases. For their restrictive tendency they advanced an argumentum ad absurdum, "... alioquin dicendum ex omni contractu nuda pactione pecuniam creditam fieri posse", thereby dismissing the suggestion that a contract of niutuum might have come into existence in the following case:

"Qui negotia Lucii Tim procurabat, is, cum a debicoribus ejus pecuniam exegisset, epistulam ad eum emisit, qua significant certain summam ex administratione apud se esse eamque creditam sibi se debiturum cum usuribus sernissibus."³'^{[832] [833] [834] [835]}

Lucius Titius' procurator had collected some money from his debtors. He then wrote to his principal asking him whether he could keep part of this sum as a loan. Even if the principal acceded to this request, a niutuum did not come into existence; otherwise the real element, essential for this type of contract, would, for all practical purposes, have been abolished and mutuum would have become a purely consensual contract.

(c) Towards a loan by agreement

But was it not possible to apply the concept of the double fiction to this type of case, as well?

"[Q]uod igitur in duabus personis recipitur, hoc et in eadem persona recipiendum est, ut, cum ex causa mandati pecuniam mihi debeas et convenerit, ut crediti nomine earn retineas, videatur mihi data pecunia et a me ad te profecta"

opined Ulpianus⁴⁰—and any attempt to reconcile this statement with that of lulianus/Africanus^[836] would be an absolutely futile piece of Pandektenharmonismus ("pandect harmonism"). The texts, relating as they do to exactly the same situation, are in direct conflict. However, Ulpianus wrote about two generations later than Africanus, and by his time the old "ex meo tuum" requirement had been further relaxed, if not disbanded. lulianus/Africanus had still emphasized the element of datio, even though the sum did not have to be advanced (directly) by the creditor but could be handed over by a third party, acting under his direction or in his name. Now, all that was left was an agreement between debtor and creditor that what was owed, was owed as a loan. And, indeed, if the direct payment from the debtor to the borrower in a three-cornered relationship can be looked upon as if two dationes had in actual fact taken place, then the same argument must surely be applicable where debtor and borrower are one and the same person. Instead of requiring the debtor (that is, the procurator in Africanus' case) to hand the money over to the creditor (on account of the actio mandati directa) and then to receive it back subsequently as a loan, the procedure can be considerably simplified by allowing the debtor/ borrower to keep the money and to regard the two dationes as having been performed. Ulp. D. 12, 1, 15 has become the basis for § 607 II BGB ("A person who owes money or other fungibles for any other reason may agree with the creditor that the money or the things shall be owed as a loan"), and it has been argued that the structure of this provision can still only be properly understood on the basis of Ulpian's double fiction.⁴² On the same basis other cases, too, could now be fitted into the framework of mutuum. Of particular interest is Ulp. D. 12, 1, 11 pr.:

"Rogasci me, ut tibi pecuniam crederem: ego cum non haberem, lancem tibi dedi vel massam auri, ut earn vendcrcs ct minimis utereris. si vendidcris, puto mutuam pecuniam factam."

Here, "ego" was quite willing to lend some money to "tu", but did not have any cash available himself. He therefore gave "tu" a dish or a lump of gold so that he could sell the same and then keep the proceeds as a loan. The cautious "puto" betrays a conflict of opinion and, not surprisingly, we find Africanus still rejecting the idea that a contract of mutuum could be created in this manner. ³ But it is not surprising, either, to see Ulpianus taking a more liberal view. The same arguments as in Ulp. D. 12, 1, 15 could be advanced: "tu", for the sake of avoiding cumbersome and unnecessary formalities, should be placed in the position in which he would have been had he first surrendered the proceeds from the sale to "ego" and then received the same from him as a loan.

(d) Contractus mohatrae

Still, however, for the mutuum to come into existence between "ego" and "tu", it was required that the latter did in actual fact sell the object and receive the purchase price.⁴⁴ It was only at the time of Diocletian that one further step towards the recognition of a loan by agreement was taken: if the borrower received certain objects from the lender and both parties were agreed as to the value of these objects, then this estimated value was to be taken as the sum which the borrower was under an obligation to return. Whether he used what had been given to ^{[837] 41} him by the lender in order to obtain the money he needed or in any other way, was left entirely to him and was no longer of any concern to the lender. He could sue the borrower with the actio certae creditae pecuniae for the return of a loan on the basis of having given him the objects in the place of money.^[838] This conceptual advance was bound to have consequences for the question of who had to carry the risk of these objects getting lost or being destroyed before the sale had been effected by the borrower. It is clear that in post-classical law that risk lay with the borrower—a corollary of the fact that it was now left to him to decide how best to make use of the objects given to him, and that the contract of mutuum came into existence no matter whether he had sold them or not. In late classical law, on the other hand, one might expect the risk to have remained with the lender, until the objects had been sold and that sale had been fully carried out. Only then did the lender lose ownership; only then, too, did the contract of mutuum come into existence. This solution would have been in accordance with the general rule of "casum sentit dominus": the risk of any accidental loss, deterioration or destruction of a thing normally falls on its owner. But the results would not always have been in accordance either with equity or with the interests and presumed intentions of the parties. Where the lender gave a golden vase, which he would never have sold himself, to a friend of his who was in need of money, charging him to sell the vase and to keep the purchase price as a loan, it was hardly equitable to burden the lender with the risk; he had, after all, gone out of his way in order to accommodate the would-be borrower. The latter was now not only in control of the vase, but the whole transaction had also been undertaken in his interest. This is why we find Nerva drawing the following distinction (Ulpianus concurring):

"... multum interesse, venalem habui hanc lancem vel massam nee ne, ut, si venalem habui, mihi perierir, quemadmodum si alii dedissem vendendam: quod si non fui proposito hoc ut venderem, sed haec causa fuit vendendi, ut tu utereris, tibi cam pensse, et maxime si sine usuris credidi."⁴'^{[839] [840]}

The allocation of risk is therefore based on the consideration whether the sale was solely in the interest of the prospective borrower, or whether it was also in the lender's interest, because he wanted to sell those particular objects anyway.

The problem discussed in Ulp. D. 12, 1, 11 pr. was interesting, not only from a dogmatical point of view, but also because it showed how a contract of sale could be used to effect a loan. In the Middle Ages the lawyers began to avail themselves of this possibility in a very ingenious way. If A sells his golden vase (value 100) to E for 120, allowing him to pay the purchase price after the lapse of a certain time, and if B then sells the vase to C for 100, B is in actual fact in the position of a person who, having borrowed 100 from A, has to repay this loan with 20 % interest. The procedure can be greatly simplified by leaving the third party out of the picture and thus confining the transaction to A and B:

"... qiiis egens pecunia emit summo pretio in diem solvendo a mercatore merces, et statim eidem pecunia numerata pretio infimo revendit."^{[841] 45 [842] [843] [844]}

If, for example, A sold his vase to B for 120 and B immediately resold it to A for 100, the second "purchase price" being due immediately, the first one only after the lapse of a certain time (such interval, of course, in reality constituting the period of the loan), the same result was achieved and it did not even matter whether the vase was in actual fact transferred and re-transferred or not. A fictitious double sale could thus be used as a substitute for mutuum and interest stipulation. Naturally, the question will be asked why the lawyers, down to the 17th century, went about what appears to be a fairly straightforward business deal in such a roundabout way. The answer is that, under the influence of medieval canon law, the European ius commune recognized a general prohibition on the charging of interest rates.⁴⁰ The contractus mohatrae, as this type of loan, disguised in the form of two contracts of sale, came to be called (in the Latinized version of an Arabian term),^[845] was thus a device—one of many!—to sidestep this idealistic but impractical canonical restraint on contractual freedom and on business life in general.^[846]

4.