IV. however might be liable for casus fortuitus if he CHAP. were in mora, i.e. if he neglected to fulfil his contract within a time specified, and damage after- Mora. wards accrued by casus. Take as an example the case of a commodatum: if the commodatarius neglected to return the res commodata at the time agreed on, and it were accidentally destroyed by fire, or were stolen, it would be in vain to plead casus, he must make good the loss; but still the rule that no one is liable for casus holds good, for in fact his liability arises from his culpa, and not from the casus. and Inno Contracts were either nominate or innominate. Nominate Nominate contracts were those which had nomen minate." et causam simul, both a name and a consideration, and a cognate action for damages. Innominate had causam sine nomine. Do ut des, Do ut facias, are examples of innominate contracts, of which there might be a great variety; they had no cognate actions, but the remedy was by an actio in factum, or præscriptis verbis1; and no money could have a place in them, or they immediately resolved themselves into the nominate contracts of buying and selling, or letting or hiring. Blackstone and some of his subsequent editors have erred on this point'. Nominate contracts were of four kinds, expressive of the ways in which they were formed: 1. Real; 2. Verbal; 3. Literal; 4. Consensual. Contracts were unilateral, or bilateral. The former were those where one party only was bound aliquod præstare, no liability resting upon the other: of this kind were mutuum, a loan; stipulatio, a solemn verbal promise; and all the contractus innominati. The bilateralis contractus is where the two parties are equally bound by the contract pro and con. 1 D. XIX. 5. 2 and 3. 2 Title by Contract. BOOK tracts, what. CHAPTER V. Of Real Contracts. REAL Contracts are those in which, besides the consent of the parties, the delivery of some Real Con- thing was required to perfect the obligation. These were four in number: 1. Mutuum. 2. Commodatum. 3. Depositum. 4. Pignus. To which may be added, 5. Precarium. Those innominate contracts in which it was agreed that some thing should be given as soon as the traditio of the thing was performed, became also real contracts, such as Do ut des; Do ut facias. Mutuum. 1. Mutuum is a gratuitous loan of money, peDefinition. cunia numerata, or of consumable goods-corn, wine, oil, &c., called res fungibiles, quæ pondere numero et mensura consistunt'. It is so called because quod ita tibi a me datum est, ex meo tuum fit. On the delivery of the res mutuata the property (dominium) was transferred to the receiver, who, as he could not return the identical thing from its nature, was bound to return the like ponWho could dere, numero, aut mensura. No one could give a mutuum unless he could alienate; and if any one should have granted a mutuum who had no right to alienate the property, it might be recovered by the actio vindicationis if unconsumed, otherwise by the actio condictioniss. grant. Indebiti solutio. In the case of indebiti solutio, i. e. where a party in paying a debt by mistake pays more than is due, the receiver stands in the position of one who owed a mutuum, and the money so over paid could be recovered as a quasi mutuum by the actio con- CHAP. dictitia1. Although the dominium of the thing lent passed to the receiver, yet neither the quantitas nor the qualitas was alienated, consequently this must be scrupulously restored. The borrower could not return new wine for old; it must be of the same quality and goodness. Less might be returned than was received if agreed upon; but not more, as that would destroy the character of the contract3. V. In this contract the receiver is liable for casus, because the dominium passes to the borrower, and therefore if the res mutuata were accidentally lost or destroyed it must nevertheless be returned'. This was an unilateral contract, and the actio mutui lay for the lender against the borrower and his heredes. As regards a mutuum of money it must be gratuitous, otherwise it immediately becomes foenus. The difference between mutuum and fœnus Fœnus. was a wide one; the former was gratuitous, the latter was a lending on interest. Fanus was lent for the purpose of profit, mutuum from motives of friendship; fœnus must be repaid at a fixed day, mutuum was returned at the convenience of the borrower; fonus was recovered by the actio kalendarii, mutuum by the actio certi ex mutuo. The ignorance of the Romans as to the true principles of commerce is strikingly exhibited in their laws respecting usura, or interest for money. They made no distinction between usury in its modern signification, and a fair and reasonable interest for the loan of money. Various laws were passed to regulate the rate of interest; and one, the Lex Genutia, to prohibit the taking interest Lex Genualtogether. This was evaded in numerous ways, and ultimately the highest legal rate of interest was fixed at 12 per cent. per annum, viz. one per cent. tia. III. BOOK per month. The Faneratores or Argentarii, the money-lenders, met in the temple of Janus on the first of the month to receive their interest. The following is a table of the different rates of interest from 12 to 1 per cent. per annum. As represented the highest legal interest of 12 per cent per annum. Assis usura, called also centessima usura, was 1 per cent. per month, or 12 per cent. per annum. Deunces usura was 11 per cent. per annum. Nauticum Fcenus. Commodatum. The party who had been induced to pay more than 12 per cent. per annum had the lender at his mercy, for in repaying the capital borrowed, sors, he might deduct the excess from it; and if the whole of the sors advanced had been swallowed up the excess might be recovered as sors indebita soluta by the condictio indebiti2. The account book in which the debt of the borrower was entered was called kalendarium3, hence the actio kalendarii. The nauticum fanus was an exception to the above. When money was sent by sea, and the risk lay with the creditor while the ship was on the voyage, he was therefore allowed to take infinita usuræ, but this ceased as soon as it came into port1. Justinian made the following alterations". He fixed the nauticum fanus at 12 per cent., and reduced ordinary interest to 6 per cent., allowing 8 per cent. as mercantile interest. 2. Commodatum is a loan of inconsumable goods lent gratuitously for a certain use, or for a 1 Hein. Ant. III. 15. 19 et seq.; Colq. 1543. 2 Paul. R. S. II. 14. 2. 4 D. XXII. 2. 1. and 3. 3 D. XXXII. 41. 6. 5 C. IV. 32. 26. 1. V. specified time, on condition of having the same CHAP. returned in specie. Commodatum est contractus quo res non fungibilis gratis utenda ita traditur ut Definition. finito eo usu res eadem restituatur1. way Commoda Commo The dominium is not transferred as in a mutuum, but remains in the lender. No money, nor any thing by way of recompense, can be given for the use of the thing lent; it would otherwise become the contract of hiring, or the innominate contract of do ut des. The res commodata could not be recalled until the use, or the time for which it was granted was complete, otherwise it was a precarium; nor could the borrower use it in any other than that agreed on, or he was guilty of theft. As a general rule the commodatarius was liable for Liability of culpa levissimas, for he was bound ad diligentiam: tarius, but this was where the benefit was solely on his side. In this case however the commodans might be liable for damages to the commodatarius if he and of were guilty of culpa lata; such as knowingly lend- dans. ing him a kicking horse, or a musty cask. If the convenience of the commodans and the commodatarius were equally concerned, they were reciprocally liable for culpa levis; but if the lending concerned the convenience of the lender only, the commodatarius was only liable for dolus. Ulpian gives an instance where the bridegroom lent, e.g. garments to his sponsa, quo honestius ad se deduceretur. If the thing lent perished by accident the loss was borne by the lender; but here the question would arise as to whether there might not be some fault in the commodatarius, which might make him liable notwithstanding. One asked his friend to lend him his plate for a supper-party in Rome; instead of this he took it with him into the country, and was robbed on the way. The plea of casus would not avail him, and he must restore the 1 Hein. El. 797. 2 D. XLVII. 2; D. LIV. I; and see post, definition of furtum. 3 D. XIII. 6. 5. 2. 4 Id. 5 D. XIII. 6. 5. 10. |