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MUTUUM, A mutui datio exists when things “quae pondere, numero, mensurave constant,” --as coined money, wine, oil, corn, bronze, silver, gold,--are conveyed by one man to another, so as to become his property, but on the understanding that an equal quantity of things of the same kind shall be returned. The obligatio thus arising belongs to the class of those things “quae re contrahuntur,” since, besides informal agreement, delivery of the res mutua was required in order to establish it. A mutui datio was not contracted unless the ownership of the thing delivered passed to the borrower; hence it was necessary that the lender should have a good title to the thing and the power of alienating it. The contract would also be void, if the borrower was incapable of legally binding himself by his act. When, however, a mutui datio was invalid, as not complying with these conditions, the borrower was not entitled to retain the benefit of the loan, but on grounds apart from contract might be compelled to restore the thing or its value to the lender.

In the mutui datio, inasmuch as the thing became the property of the receiver, the Roman jurists were led to the absurdity of saying that mutuum was so called for this reason, “quod ex meo tuum fit.” (Curtius, Gr. Etym. 301, derives mutuum from movere, moviturus.) The only obligation created by mutuum was the undertaking of the borrower to return a thing of exactly the same kind and quantity, though not the same specific thing, as in the contract of loan called commodatum. He was not excused if the things were lost by any accident, as by fire or shipwreck, since he had become owner of them, and it was always possible to return an equivalent. This contract was confined by its nature to exchangeable things (res fungibiles), and most commonly had for its object a loan of money. The borrower could not be obliged to pay interest on the debt except by means of an independent stipulation. The action which the lender could maintain for the enforcement of his claim was called condictio, and was the same action as that of the formal contracts verbis and litteris. It was a stricti juris actio, not bonae fidei, and hence the borrower could only be condemned to pay what he had received without interest. It is a peculiarity of mutui datio that although it originated in the Jus Gentium, the action belonging to it was stricti juris. The fact that it belonged to the Jus Gentium shows that it was not legally recognised till some time subsequent to the Twelve Tables. Voigt suggests 525-544 A.U.C. as the probable date of its first establishment. (Cf. the following passages cited by him:--Plaut. Trin. 3.2, 101, 4.3, 44; Bacch. 2.3, 16; Liv. 32.2, 1; Cic. pro Rose. Com. 4, 13; Gel. 17.6, 1.) It was certainly older than the other contractus re. The borrowing by way of mutuum and at interest are sometimes opposed, as by Plautus (Asin. 1.3, 95). The S. C. Macedonianum did not allow a right of action to a lender against a filiusfamilias to whom he had given money. [SENATUSCONSULTUM MACEDONIANUM.]

Dig. 12, 1; Cod. 4, 1; Heimbach, Die Lehre vom Creditum, p. 131, &c.; Bekker, Aktionen, 1.27-29; Demelius, Zeitschrift für Rechtsgesch. 2.217; Ubbelohde, Zur Geschichte d. benannter Realcontracte; Huschke, Die Lehre vom Darlehn.

[G.L] [E.A.W]

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