The nature of mutuum
We turn now Co the real contracts, the prototype of which was mutuum, the loan for consumption. It is, in fact, the only real contract Gaius specifically deals with in his Institutes.
He describes it in the following terms:"[MJutui autem datio proprie in his fere rebus contingit quae pondere numero mensura constant, qualis est pecunia numerata, vinum, oleum, frumentum, aes, argentum, aurum, quas res aut numerando aut metiendo aut pendendo in hoc damus, ut accipiencium fiant et quandoque nobis non eadem, sed aliae eiusdem naturae reddantur";'
and he adds a speculation as to why this type of contract was called mutuum: "[U]nde etiam mutuum appellatum est, quia quod ita tibi a me datum est, ex meo tuum fit."- This is a pseudo-etymology.[806] [807] [808] Mutuum is probably derived from "mutare", which means "to change", "to swop".[809] Yet, ex meo tuum facere was an essential feature of the contract of mutuum. A datio had to take place[810] on account of which ownership of the objectfs) lent passed to the borrower. Once this datio had been effected, the borrower became obligated to the lender not to return the very things that he had received, but (in the case of money) an equal sum or (as far as other fungibles were concerned) objects of the same kind, quantity and quality.[811] To enforce this obligation, the lender could avail himself of the condictio (actio certae creditae pecuniae).[812] Owing to the fact that its intentio was abstractly framed (that is, it did not refer to the obligatory basis of the claim), this action was very flexible and apt to cater for all situations where certum dare was owed. That is why we have already come across the condictio in the cases of stipulationes certi and contracts litteris.[813]
Three obvious inferences can be drawn from what has been said so far. Whereas not every loan of fungibles9 can be classified as a mutuum (in the case of fungible objects which are ordinarily used without being consumed, the lender will often want to get back the thing itself and not only its equivalent in kind; already, therefore, a transfer of ownership to the borrower is not envisaged by the parties), non-fungible objects cannot be the object of a mutuum: the borrower's obligation presupposes the existence of an equivalent in kind.10 Secondly, as both ownership and possession pass to the borrower and as a contractual obligation does not come into existence without this transfer having taken place, risk problems cannot arise.
If the borrower loses the money or the goods received, this is entirely his own affair and does not have any effect on his obligatio arising from the mutuum: "et is quidem qui mutuum accepit, si quolibet fortuito casu quod accepit amiserit, veluti incendio, ruina, naufragio aut latronum hostiumve incursu, nihilo minus obligatus permanet."11 This is entirely in accordance with the natural principle of casum sentit dominus (or res perit suo domino):12 it is the owner who has to bear the risk of accidental loss or destruction and, except by way of insurance, he cannot shift the risk onto somebody else's shoulders. Thirdly, prior to the datio (that is, the vesting of ownership in the borrower), no obligation could come into existence. A pactum de mutuo dando, i.e. the promise to grant a loan in future, was unenforceable—unless, of course, it was couched in the form of a stipulation.2.
More on the topic The nature of mutuum:
- 1. Commodatum and mutuum
- Mutuum and stipulatio
- The consensual element of mutuum
- Mutuum
- THE ROMAN CONTRACT OF MUTUUM
- PAR T III Mutuum
- Mutuum (Loan for Consumption)
- The nature of Directives
- The nature of lease
- The nature of the remedies available
- 1. The nature of suspensive conditions
- The nature of Regulations