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Ex Contractu... RE: the ‘real’ contracts José Luis Alonso & Jakub Urbanik The Roman Law of Obligation III Chair of Roman and Antique Law. University of.

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Presentation on theme: "Ex Contractu... RE: the ‘real’ contracts José Luis Alonso & Jakub Urbanik The Roman Law of Obligation III Chair of Roman and Antique Law. University of."— Presentation transcript:

1 Ex Contractu... RE: the ‘real’ contracts José Luis Alonso & Jakub Urbanik The Roman Law of Obligation III Chair of Roman and Antique Law. University of Warsaw

2 The Real Contracts Origins: Fiducia cum creditore contracta --> pignus Fiducia cum amico contracta --> commodatum, depositum Nexum --> mutuum

3 The Real Contracts commodatum: gratuitous loan for use pignus: possessory pledge depositum: deposit Mutuum: loan for consumption

4 Main differences: Mutuum (loan for consumption) versus Deposit, loan for use (commodatum), possesory pledge (pignus)

5 Main differences: Mutuum Depositum, pignus, commodatum Unilateral(potentially) bilateral Transfer of ownershipTransfer of detention Fungible thingsNon-fungible thins Based on the strict law Based upon good faith (classical law) Obligation to give (dare)Obligation to perform (facere)

6 Actions Mutuum: condictio certae creditae pecuniae/rei Actio depositi directa/contraria Actio commodati directa/contraria Actio pigneraticia directa/contraria

7 Debtor’s liability Mutuum: the debtor bears the contractual risk (as the owner of the thing!) Deposit: liability for deceit (dolus) and perhaps gross negligence Pignus/Commodatum: liability for safe- keeping (custodia) as well as deceit and negligence

8 Mutuum G Of real contracts, or contracts created by delivery of a thing, we have an example in loan for consumption, or loan whereby ownership of the thing lent is transferred. This relates to things which are estimated by weight, number, or measure, such as money, wine, oil, corn, bronze, silver, gold. We transfer ownership of our property in these on condition that the receiver shall transfer back to us at a future time, not the same things, but other things of the same nature: and this contract is called Mutuum, because thereby meum becomes tuum.

9 D : How much does one owe Ulpian, from the 26th book of Commentary on the Edict: If I give you ten, so that you shall owe me nine, Proculus holds - and rightly, that by that right you shall owe me no more than nine. But if I give you (ten), so that you shall owe me eleven, Proculus thinks, that more than ten cannot be claimed. Why so?!

10 Condictio certae creditae pecuniae If it appears that the defendant ought to give on the basis of the civil law to the plaintiff 100, let the judge condemn the defendant in favour of the plaintiff for 100, if it does not appear, let the judge absolve him.

11 Ulpian, Edict, book 31: Some singular rules have been accepted concerning loans of money. If I tell my debtor to give you money, you come under an obligation to me even though the coins you have received were not mine. Then, what holds for two people has to be applied also to one person, so for example if you owe me money because of a mandate, and it is be agreed that you shall keep them on the basis of loan for consumption, the money is thought to have been given to me and (then) delivered to you by me. D : SOME SINGULAR RULES (the ficticious datio)

12 TRANSFER mutuum ME YOU iussum datio pecuniae MY DEBTOR

13 Ulpian, Edict, book 31: Some singular rules have been accepted concerning loans of money. If I tell my debtor to give you money, you come under an obligation to me even though the coins you have received were not mine. Then, what holds for two people has to be applied also to one person, so for example if you owe me money because of a mandate, and it is be agreed that you shall keep them on the basis of loan for consumption, the money is thought to have been given to me and (then) delivered to you by me. D : SOME SINGULAR RULES (the ficticious datio)

14 ME YOU Of mandate ME YOU solutio ME YOU datio Datio ficticia I Datio ficticia II

15 You have asked me to lend you money. As I had none, I gave you a bowl or a gold-nugget to sell and use the money. If you sell I think that a loan for consumption has been given. But suppose you lose the bowl or the block before the sale without fault on your part. Does the loss fall on you or me? I think Nerva draws exactly the right distinction. He says it all depends on whether or not I had the bowl or block up for sale. If yes, the loss falls on me, just as if I handed it over to another to be sold. On the other hand, if I did not plan to sell but it was moved to do so only to enable you to use the money, the loss is yours - and all the more if the loan is interest free. D pr.: Contractus mohatrae Ulpian, 26 book on the Edict:

16 Contractus mohatrae A B 1000 ABAB ABAB A B 800

17 D : Ulpian, Edict, book 26 I made a deposit with you of ten. Later I allowed you to use them. Nerva and Proculus hold that even before they are moved a condictio lies for them as upon a loan for consumption and that is correct, as Marcellus also finds, because the intention initiates possession (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him. D : Ulpian, Edict, book 2 On the other hand, if from the beginning of the deposit I say you may use it if you want to, then because it is not certain when there will be any indebtedness the credit does not happen until the money is moved.

18 Marcus gave 1000 to Titius in deposit and left to Africa. A couples of months later Titius asked him in a letter if he could make use of half of the deposited sum, to be repaid later with 5 %interest. To that Marcus answered with the following parchment: “Marcus to Titius, a greeting, I hope I find you in good health. you may use my money provided that you repay me with 5% interest. Farewell”. When the letter-bearer arrived to Titius’ house, he found still burning ruins. Apparently it had just been struck by a lighting bolt. How much does he have to pay back to Marcus? What if he has allowed Titius to use the money upon delivering it to him?

19 Allahuma salli ala Muhammadin wa Aal-e Muhammad: O God! Shower thy blessings on Muhammad and the descendants of Muhammad. O God! Shower thy blessings on Muhammad and the descendants of Muhammad.

20 Wishing you a very happy Purim

21 XRISTOS ANHSTH, ALEYVS ANHSTH

22 Wesolego Jajka!

23 Some Practical Implications

24 Puteoli/Pozzuoli & Sulpicii

25

26

27 A credit from Puteoli TPSulp. 55, tab I, pag. 2 (graphio, scriptura interior) 1. V nonas Mar[tia]s( ) 2. C(aio) Pompeio Ga[llo Q(uinto)] Vera[nio] co(n)sulibus 3. P(ublius) Verg[ili]us Am[pliatus] scripsi 4. me accepisse m[utu]a e[t deb]ere 5. Sex(to) [Gr]anio Num[eni]o sestertia 6. [quin]que mi[llia num]mum 7. [ea]q[ue HS V m(illia n(ummum) quae supra s[cript]a 8. sunt pr[o]ba recte dari s[tip]u- 9. latus est S[e]x(tus) Gr[a]nius [Numerius] 10. [spopondi P(ublius) Vergil]ius A[mpliatus.]

28 1. [spopondi P(ublius)] Vergiliu[s Ampliatus.] 2. C(aio) Pom[peio] Gallo Q(uinto) Vera[nio co(n)sulibus] 3. [V] nonas Mar[tia]s( ) 4. P(ublius) [V]ergilius Ampliatus sc[ripsi me] 5. dedisse Sex(to) Granio Num[enio] 6. pignori argentum p(ondo) X[ _ _ ] 7. plus minus, quod est sig[no] 8. meo signatum, ab HS V m(illia) [n](ummum) 9. [quae] ab eo mutua accepi [hac?] 10. [die? pe]r [c]h[iro]graphum meu[m.] 11. Actum Puteo[lis].

29 During the consulship of Caius Pompeius Gallus and Quintus Veranius, 5 days before the Nones of March ( ). I Publius Vergilius Ampliatus have written that I have received a loan of money and I owe to Sextus Granius Numerius 5 thousand sesterces of coins. And these 5000 sesterces of coins shall be properly returned in good coin. Sextus Granius has asked for a formal promise for that, and I Publius Vergilius Ampliatus have stipulated. During the consulship of Caius Pompeius Gallus and Quintus Veranius, 5 days before the Nones of March ( ). I Publius Vergilius Ampliatus have written that I have given to Sextus Granius Numerius ??? pounds of stamped silver as pledge for these 5000 sesterces of money which I have received today from him as a loan by my chirographum. Acted in Puteoli.

30 LABEO ✦ D Ulpianus libro 11 ad Ed.: Labeo libro primo praetoris urbani definit, quod quaedam agantur, quaedam gerantur, quaedam contrahantur: et actum quidem generale verbum esse sive verbis, sive re quid agatur ut in stipulatione vel numeratione: contractum autem ultrocitroque obligatione, quod Graeci vocant, veluti emptionem venditionem, locationem conductionem, societatem: gestum rem significare sine verbis factam. ✦ Labeo in the first book on the edict of urban praetor defines that some things are acted, other carried out, other contracted. And indeed ‘acted’ is a general word whether something is acted by words or things, like in stipulation or computation. ‘Contracted’ denotes bilateral obligation which the Greeks call synallagma, as for instance, sale or purchase, hire or partnership. ‘Carried out’ means a thing done without words. sunãllagma

31 Stipulatio Form Types/Function sponsio/fidepromissio & fideiussio &c. various types of warranties and guarantees, penal clause strengthening another obligation, cession of a credit... Abstractness and flexibility

32 Formulas actio ex stipulatu, but also: actio certae creditae pecuniae/rei

33 Stipulatio Consider the consequences of the following stipulations: Publius asks his prospective father-in-law: a) ‘do you promise to give me 10?’ Yes, I do’ b) ‘do you promise to give me 10 as a dowry for your daughter Maevia?’ ‘Yes I do’

34 Dotis promissio D , Ulpian, 35 book on Sabinus A stipulation which is made to constitute a dowry is considered to include a condition ‘if the marriage is contracted’, and thus one can sue upon this stipulation (even if the condition has not been expressively formulated) only when the marriages has taken place. And if the envoy is called back, the condition is considered not to have been fulfilled.


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