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
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
) 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
), 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
It was a stricti juris
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.
; Cic. pro
4, 13; Gel. 17.6
.) 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.]
; Cod. 4, 1;
Heimbach, Die Lehre vom Creditum,
p. 131, &c.;
1.27-29; Demelius, Zeitschrift
2.217; Ubbelohde, Zur
Geschichte d. benannter Realcontracte;
Huschke, Die Lehre