View of Real Contracts in Roman Law and their Development in Positive Law with Special Emphasis on Loan Contracts (Mutuum) | Acta Universitatis Danubius. Juridica (2024)

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What are the real contracts in Roman law? ›

Types of Real Contracts in Roman Law

Thus, four well-known real contracts arose: 1) mutuum, 2) commodatum, 3) depositum and 4) pignus. In some of the mentioned cases, through the delivery of the item, the debtor's property was constituted on the object of the obligation, while in others only the retention or detention.

In Roman law, mutuum was a real contract where money or fungible goods were lent to a borrower, who was strictly liable to return an equivalent amount. Any interest had to be agreed upon beforehand. When John borrowed a bag of sugar from his neighbor, he promised to return the same amount of sugar.

The creditor (“ego”) has ordered his debtor to pay the money to a third party (“tu”) to whom he wished to lend it. A contract of mutuum is thereby created between the creditor and the third party, even though the latter has not received his money from the creditor/lender.

To be valid, a contract in Roman Law requires: (1) a “Thing”; (2) a Price; and (3) Agreement/Consent. Borowski and du Plessis succinctly state the principle: “Once the parties had agreed on the subject-matter and the price [emphasis supplied], the contract was 'perfect', i.e., fully made.

Emphasis is particularly on three concepts central to the overall architecture of Roman contract law: consensus (agreement); bona fides (good faith); and, to a more limited extent, causa (cause or reason for contracting). The law of contracts is placed in the more general framework of obligation and debt.

Justinian identifies four types of real contract – contracts in re (in a thing) – mutuum, commodatum, depositum and pignus. Common to all four was an agreement, and the delivery of a res corporalis. They are in contrast to consensual and inominate contracts.

There are three important principles of Roman law. An accused person was presumed innocent unless proven guilty. Secondly, The accused was allowed to face the accuser and offer a defense against the charge. Lastly, guilt had to be established "clearer than daylight" using solid evidence.

Roman law, like other ancient systems, originally adopted the principle of personality—that is, that the law of the state applied only to its citizens. Foreigners had no rights and, unless protected by some treaty between their state and Rome, they could be seized like ownerless pieces of property by any Roman.

Mutuum involves the loan of consumable goods, with the debtor bearing the risk of loss and goods of equal kind and quality to be returned after the term expires. The key differences are that commodatum loans non-consumable goods for use while mutuum loans consumable goods for consumption.

Mutuum is a loan of money or a consumable item that must be returned in equal amount. Deposit involves safekeeping of an item with an obligation to return the same item.

What are the characteristics of mutuum? ›

It is essentially gratuitous, and ownership remains with the lender. Mutuum refers to a loan for consumption, where a fungible item like money is lent and an equivalent amount must be repaid.

Mutuum was available only where a party wanted to borrow money or fungibles; an equivalent in kind had to be returned. Where the lender, on the other hand, expected the very same thing that he had handed over to the borrower to be returned, the contract was not mutuum but commodatum.

role in Roman law

The literal contract was a type of fictitious loan formed by an entry in the creditor's account book; it was comparatively unimportant and was obsolete by Justinian's day. The verbal contract required set words or patterns of words to be spoken.

Parties to a contract are free to choose the terms which govern their rights and obligations in terms of their values and preferences, and what is agreed between them would then generally find the backing of the law.

THEORIES OF ROMAN LAW-

unprecedented balance between justice and fairness, natural and civil justice, private and public interest, moral authority and coercive power, judicial flexibility and legal certainty, tradition and innovation, simplicity and scholarship and abstraction and casuistry.

A real contract is a type of contract that involves the exchange of a physical object or property. It is an agreement between two or more parties that creates obligations that are enforceable by law. For example, if you agree to sell your car to someone for a certain amount of money, that is a real contract.

The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.

The best-known theory of political obligation is actual contract theory: a political society is founded on an agreement, and the parties to the agreement — now the members of the society — are obligated accordingly.