On the "reality" of real contracts
Roman law never merged mutuum, pactum de mutuo dando and interest stipulation into a single consensual contract to be transformed into a bonae fidei iudicium. A mere pactum de mutuo dando remained unenforceable and interest had to be stipulated for separately; mutuum had become a true contract, but remained a "real" one.
There seems to have been a certain reluctance to improve and streamline this area of the law, and thus to promote the danger of usurious dealings.51 Both the insistence on formality (as far as interest was concerned)52 and on the principle that the (future) granting of a loan could not be validly promised, served a very useful warning function, preventing lender as well as borrower from entering rashly into dangerous credit transactions. The Roman idea of mutuum as a real contract, giving rise to only one obligation (namely that of the borrower to repay the loan) was bound to become very problematic when, as a result of the general recognition of "pacta sunt servanda",[847] pacta de mutuo dando and informal arrangements about interest could be and were in actual fact regarded as valid and binding.[848] Instead, however, of advancing the process of amalgamation and "consensualization", the authors of the ius commune, particularly in the 19th century, entrenched the idea of the Roman real contracts as something logically necessary and conceptually cogent."The... real contracts," we read, "are 'real' in the fullest sense of the term: by the very nature of the case they are, and always will be, real contracts, because they all involve an entrusting of property by one person to another [with a duty in that other to restore itj, so that the 'res', in this instance, determines both the ground and the nature of the obligation. Accordingly the nominate real contracts are real contracts to this very day: a claim for a return of property can only be supported on the ground of the previous delivery."[849]
By the same token, however, the contract of lease would have to be regarded as a real contract, because there, too, the duty to restore the property comes into existence only once delivery has taken place.[850] What the pandectists tended to overlook, was, firstly, the fact that in modern law (otherwise than in Roman law) every performance—as long as it is not illegal or immoral—can be the object of a binding contractual agreement. Secondly, they overemphasized the obligation of the borrower to restore what he had received, without duly taking into consideration that the creation of such an obligation in the person of the borrower can hardly be the content and main purpose of the whole transaction;[851] otherwise the lender might as well have kept his property in the first place.
A loan, in other words, is not made in order to get back the money; it is made in order to let the other party have the use of the capital[852] for a certain period of time and (perhaps) to earn some interest for the temporary transfer of such value.[853] [854] [855] It took a long time to overcome such conceptual thinking still based, essentially, on the Roman actional system. According to § 607 BGB, the essence of a loan consists in a person who has received money or other fungibles as a loan, being bound to return to the lender what he has received, in things of the same kind, quality and quantity. No mention is made of any duties on the part of the lender. It is not surprising, on this basis, that the "Realvertragstheorie" has still found staunch supporters in this century:60 the agreement to give a loan,61 in their view, is only a pactum de contrahendo, the loan itself a contract re.[856] Today, however, the unsuitability of this view, both on a conceptual level and as far as the practical consequences are concerned, has been widely recognized.[857] Loan, therefore, is usually regarded as a consensual contract in modern law;[858] [859] the handing over of the capital to the borrower takes place solvendi, and not obligandi causa. A loan at interest, then, is a reciprocal contract, and even where no interest has been agreed upon, duties do not only arise in the person of the borrower (that is, the contract is not any longer merely unilaterally binding). Thus, the lender is obliged to transfer the capital to the borrower and to let him have the use of the value for the time agreed upon; he can be liable on account of defects in title or defects in quality, etc.6566
More on the topic On the "reality" of real contracts:
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- "De facto" contracts and implied promises
- 2. From "Konsumptionskonkurrenz" to "Solutionskonkurrenz"
- "Quod metus causa gestum erit, ratum non habeo"
- Causa as an extra piece of "garment"
- 1. Restoration, damages and "Dtfferenztheorie "
- 1. The "iron" rule of Roman law and the notion of an implied lex commissoria
- "Animus iniuriandi" and Artemus Jones
- Essential elements of Roman "labour law"
- Unenforceable obligations ("obligationes naturales")
- 2. The "natural" law of delict
- "Si paret... dare oportere"
- The limits of the notion of "corrumpere"
- 1. The "weakness" of enrichment claims in German law
- The meaning of "occidere"
- "Contributory negligence" in Roman law
- The "community of collective hand"
- OTHER FORMS OF "SOLUTIO IMPROPRIA"
- Once again: "Si vas" (Pomp. D. 19,1, 6, 4)
- "Deposit" of immovables?