TWENTIETH-CENTURY ROMAN LAW
Sohm-Mitteis-Wenger[728] considered the so-called contractus mohatrae[729] another relaxation of the direct transfer requirement.[730] Kaser[731] confined himself in his textbook to stating that D.12.1.11pr shows that since Nerva these facts[732] were considered to be mutuum.
In Synteleia Vicenzo Arangio- Ruiz,[733] he analysed an essay by Koschaker[734] and rejected the earlier interpretation as well as the older secondary sources on this topic on account of the interpolation method employed. In his essay, Kaser suggests that the recognition of mutuum in the circumstances described in D.12.1.11pr was not unanimous,[735] and considers Nerva’s solution of the risk-allocation representative of the proper classical interest theory.[736] He considered C.4.2.8 a step forward because an action[737] became immediately available, which represented an extension of recognition of indirect provision of money in mutuum.[738] Zimmermann[739] follows Kaser and discusses D.12.1.11pr and C.4.2.8 as steps within the evolution towards a consensual loan for consumption. Without derogating the value of this approach, this essay argues in favour of viewing these texts from another perspective, in casu the world of usurious moneylending.9.
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