Idea Transcript
The ‘Real’ Contracts
José Luis Alonso & Jakub Urbanik
The Roman Law of Obligation III Chair of Roman and Antique Law. University of Warsaw
The Real Contracts Origins: Fiducia cum creditore contracta --> pignus Fiducia cum amico contracta --> commodatum, depositum Nexum --> mutuum
The Real Contracts Mutuum: loan for consumption LENDER --> BORROWER pignus: possessory pledge: PLEDGER --> PLEDGEE depositum: deposit DEPOSITOR --> DEPOSITARY commodatum: gratuitous loan for use
The Real Contracts Mutuum: loan for consumption LENDER --> BORROWER pignus: possessory pledge: PLEDGER --> PLEDGEE depositum: deposit DEPOSITOR --> DEPOSITARY CF. Bailment commodatum: gratuitous loan for use
Main differences:
Mutuum (loan for consumption) versus Deposit, loan for use (commodatum), possessory pledge (pignus)
Main differences:
Main differences: Mutuum
Depositum, pignus, commodatum
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Fungible things
Non-fungible things
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Fungible things
Non-fungible things
Based on the strict law
Based upon good faith (classical law)
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Fungible things
Non-fungible things
Based on the strict law
Based upon good faith (classical law)
Obligation to give (dare)
Obligation to perform (facere)
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Fungible things
Non-fungible things
Based on the strict law
Based upon good faith (classical law)
Obligation to give (dare)
Obligation to perform (facere)
Divisible
Indivisible
Main differences: Mutuum
Depositum, pignus, commodatum
Unilateral
(potentially) bilateral
Transfer of ownership
Transfer of detention
Exception: Fungible things ‘irregular’ types
Non-fungible things
Based on the strict law
Based upon good faith (classical law)
Obligation to give (dare)
Obligation to perform (facere)
Divisible
Indivisible
Actions Mutuum: condictio certae creditae pecuniae/rei Actio depositi directa/contraria Actio commodati directa/contraria Actio pigneraticia directa/contraria
Debtor’s liability
Debtor’s liability Mutuum: the debtor bears the contractual risk (as the owner of the thing!)
Debtor’s liability Mutuum: the debtor bears the contractual risk (as the owner of the thing!)
Deposit: liability for fraud (dolus) and perhaps gross negligence
Debtor’s liability Mutuum: the debtor bears the contractual risk (as the owner of the thing!) Pignus/Commodatum: liability for fraud and negligence (as the most diligent father-of-family) as well as for safekeeping (custodia) Deposit: liability for fraud (dolus) and perhaps gross negligence
A Case Aulus wanted to borrow money from Quintus. They agreed that the money would be paid in a week - once Aulus had finalised a transaction he was preparing. On the very same day to secure the future repayment of the loan Quintus asked Aulus Do you promise that 100 will be given to me? Aulus answered I do promise. They also made a document evidencing the transaction. A week after however Aulus’ transaction failed and so he did not come to Quintus to get the money as he did not need them anymore. When - after a few months the heirs of the recently deceased Quintus found the document they decided to claim the amount therein specified.
PRAESTARE = secure/guarantee that Dolus (Fraud) Culpa lata (gross negligence) Culpa levis (lesser negligence: abstract standard, subjective standard) Custodia (default in safe-keeping) Casus (force-majeure)
will not interfere
with the performance
Custodia
Custodia • a duty to keep thing safe:
Custodia • a duty to keep thing safe: • the debtor becomes liable if he has not prevented the loss of the thing
Custodia • a duty to keep thing safe: • the debtor becomes liable if he has not prevented the loss of the thing
• the only circumstance that excludes liability is forcemajeure
Custodia • a duty to keep thing safe: • the debtor becomes liable if he has not prevented the loss of the thing
• the only circumstance that excludes liability is forcemajeure
• yet, the efforts of the debtor are not examined, the mere fact that the thing has been lost, makes him liable
Custodia • a duty to keep thing safe: • the debtor becomes liable if he has not prevented the loss of the thing
• the only circumstance that excludes liability is forcemajeure
• yet, the efforts of the debtor are not examined, the mere fact that the thing has been lost, makes him liable
• liability incurred in some typical cases, in which it was
presumed a certain degree of care would always prevent the loss:
Custodia • a duty to keep thing safe: • the debtor becomes liable if he has not prevented the loss of the thing
• the only circumstance that excludes liability is forcemajeure
• yet, the efforts of the debtor are not examined, the mere fact that the thing has been lost, makes him liable
• liability incurred in some typical cases, in which it was
presumed a certain degree of care would always prevent the loss:
• theft, destruction by animals or other party
Custodia • Schulz: • [The Debtor] was absolutely liable for
certain typical accidents which were regarded as avoidable by properly watching and guarding the borrowed thing, and on the other hand
• he was not liable for other typical accidents which were invariably regarded as not avoidable by the exercise of care’
Modern divisions Strict liability vs. liability for negligence
based on breach of a duty
– fault based liability (subjective liability)
Mutuum G. 3.90. 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.
Mutuum G. 3.90. 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. What objects may be given as a loan?
Mutuum G. 3.90. 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. What objects may be given as a loan? What is the debtor’s liability?
Mutuum G. 3.90. 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. What objects may be given as a loan? What is the debtor’s liability? Why?
Mutuum G. 3.90. 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. What objects may be given as a loan? What is the debtor’s liability? Why?
D.12.1.11.1: 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.
D.12.1.11.1: 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. Reconstruct the two cases.
D.12.1.11.1: 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. Reconstruct the two cases. Why so?
D.12.1.11.1: 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. Reconstruct the two cases. Why so? What are the rules concerning interest in loans?
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.
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.
A stipulation for interest is needed to create another civil law ground for the action.
Interest
Interest • Mutuum: an amicable contract?
Interest • Mutuum: an amicable contract? • 1/12 in the Law of Twelve Tables: how much was that?
Interest • Mutuum: an amicable contract? • 1/12 in the Law of Twelve Tables: how much was that?
• Loans in kind (grain)
Interest • Mutuum: an amicable contract? • 1/12 in the Law of Twelve Tables: how much was that?
• Loans in kind (grain) • Maritime Loan (Faenus nauticum)
D.12.1.15: SOME SINGULAR RULES (the ficticious datio) 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 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.12.1.15: SOME SINGULAR RULES (the ficticious datio) 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 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.
ME
My DEBTOR
YOU
iussum (order)
ME
My DEBTOR
YOU
iussum (order)
ME
My DEBTOR
YOU
io t da iae n u c e p
iussum (order)
ME
My DEBTOR
loan for consumption
io t da iae n u c e p
YOU
fictitious transfer I
iussum (order)
ME
My DEBTOR
loan for consumption
io t da iae n u c e p
YOU
fictitious transfer I
iussum (order)
ME
My DEBTOR
loan for consumption fictitious transfer II
io t da iae n u c e p
YOU
TRANSFER
fictitious transfer I
iussum (order)
ME
My DEBTOR
loan for consumption fictitious transfer II
io t da iae n u c e p
YOU
D.12.1.15: SOME SINGULAR RULES (the ficticious datio) 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 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.12.1.15: SOME SINGULAR RULES (the ficticious datio) 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 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.
Ego
mandatum
Tu
Ego
Ego
mandatum
Tu
Tu
Ego
Ego
mandatum
Tu
Tu
Ego
Tu
solutio
mandatum
Ego
Tu
Ego
Tu
Ego
solutio
mandatum
Ego
Tu
Tu
Ego
Tu
Ego
solutio
mandatum
Ego
Tu
Tu
Ego
Tu
Ego
datio
Tu
solutio
mandatum
Ego
Tu
Ego
Ego
mandatum
Tu
Tu
Ego
Ego
mandatum
Tu
Tu
Ego
Ego
mandatum
Tu
Tu
mandatum
Tu
Ego
Datio ficticia I
Ego
Tu
mandatum
Tu Datio ficticia II
Datio ficticia I
Ego Ego
Tu
D.12.1.11 pr.: Contractus mohatrae Ulpian, 26 book on the Edict:
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.
D.12.1.11 pr.: Contractus mohatrae Ulpian, 26 book on the Edict:
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.
Contractus mohatrae A
B
Contractus mohatrae A
B
Contractus mohatrae A
B
A
B
Contractus mohatrae A
B
A
B
1000
Contractus mohatrae A
B
A
B
1000
Contractus mohatrae A A
A
1000
B B
B
Contractus mohatrae A A A A
1000
B B B B
Contractus mohatrae A A A A
1000
B B B B
Contractus mohatrae A A A A
1000
B B B B
Contractus mohatrae A A A
800 A
1000
B B B B
Contractus mohatrae A A A A
1000
B B B
800 B
D. 12.1.9.9: 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 possession was initiated by will (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him.
D. 12.1.9.9: 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 possession was initiated by will (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him.
D. 12.1.10: Ulpian, Edict, book 2
D. 12.1.9.9: 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 possession was initiated by will (animo). Hence risk passes to him who sought the loan for consumption, and the condictio lies against him.
D. 12.1.10: 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.
D. 16.3.26 Paulus libro quarto responsorum 16.3.26 Paulus libro quarto responsorum. Titius ita cavit: ἜλửỮον, ₫ửὶ ἔχω ựἰς λόữον πửρử₫ửƯ̆ή₫ỷς τὰ προữựữρửμμένử τοῦ ἀρữυρίου Ựựνửρίử μυρίử, ₫ửὶ πάντử ποư̆ήσω, ₫ửὶ συμφωνῶ ₫ửὶ ὡμολόữỷσử, ὡς προữέữρửπτửư̆· ₫ửὶ συνựƯ̆έμỷν χορỷữῆσƯ̆ửư̆ σοư̆ τό₫ον ἑ₫άστου μỷνὸς ὀỮόλους τέσσửρửς μέχρư̆ τῆς ἀποỰόσựως πửντὸς τοῦ ἀρữυρίου. Quaero, an usurae peti possunt. Paulus respondit eum contractum de quo quaeritur depositae pecuniae modum excedere, et ideo secundum conventionem usurae quoque actione depositi peti possunt
D. 16.3.26 th Paul, 4 book of Answers (1) Lucius Titius made the following statement: "I have received, and have in my hands as a deposit the sum of ten thousand denarii of silver, and I promise and bind myself to return all the said amount, as agreed upon between us; and, in accordance with the contract entered into, I will pay you every month four oboli for each pound by way of interest, until payment of the entire sum has been made." I ask whether interest can be demanded? Paulus has answered that the contract that is under the scrutiny here, exceeds the amount of the money deposited and hence in accordance with the agreement, interest can be claimed in an action on deposit.
Marcus gave 1000 to Titius in deposit and left to Africa. A couples of months later Titius asked him in a letter, whether 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, greeting, I hope I find you in good health. you may use my money provided that you repay me with 5% interest. Farewell”. The day after the letter-bearer arrived to Titius’ house, it was turned into burning ruins by a lighting bolt. How much does he have to pay back to Marcus? What actions may be used? What if Marcus allowed Titius to use the money upon delivering it to him?
Some Practical Implications
A credit from Puteoli TPSulp. 55, tab I, pag. 2 (graphio, scriptura interior) V nonas Mar[tia]s (3.03.49) C(aio) Pompeio Ga[llo Q(uinto)] Vera[nio] co(n)sulibus P(ublius) Verg[ili]us Am[pliatus] scripsi me accepisse m[utu]a e[t deb]ere Sex(to) [Gr]anio Num[eni]o sestertia [quin]que mi[llia num]mum [ea]q[ue HS V m(illia n(ummum) quae supra s[cript]a sunt pr[o]ba recte dari s[tip]ulatus est S[e]x(tus) Gr[a]nius [Numerius] [spopondi P(ublius) Vergil]ius A[mpliatus.]
[spopondi P(ublius)] Vergiliu[s Ampliatus.] C(aio) Pom[peio] Gallo Q(uinto) Vera[nio co(n)sulibus] [V] nonas Mar[tia]s (3.03.49) P(ublius) [V]ergilius Ampliatus sc[ripsi me] dedisse Sex(to) Granio Num[enio] pignori argentum p(ondo) X[ _ _ ] plus minus, quod est sig[no] meo signatum, ab HS V m(illia) [n](ummum) [quae] ab eo mutua accepi [hac?] [die? pe]r [c]h[iro]graphum meu[m.] Actum Puteo[lis].
During the consulship of Caius Pompeius Gallus and Quintus Veranius, 5 days before the Nones of March (3.03.49). 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 (3.03.49). 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.
Datio & numeratio pecuniae
Datio & numeratio pecuniae
MUTUUM
Datio & numeratio pecuniae
MUTUUM
Datio & numeratio pecuniae
MUTUUM
Spondes?
Datio & numeratio pecuniae
MUTUUM
Spondeo Spondes?
Datio & numeratio pecuniae
MUTUUM
Spondeo Spondes?
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
Spondeo Spondes?
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
SPONSIO
Spondeo Spondes?
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
conditio certae creditae pecuniae
SPONSIO
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
conditio certae creditae pecuniae
KASER: Kombinierter/Hybridvertrag
Spondeo Spondes?
SPONSIO
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
conditio certae creditae pecuniae
KASER: Kombinierter/Hybridvertrag
Spondeo Spondes?
SPONSIO
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
conditio certae creditae pecuniae CHIROGRAPHUM
KASER: Kombinierter/Hybridvertrag
Spondeo Spondes?
SPONSIO
KASER: Kombinierter/Hybridvertrag
Spondeo Spondes?
134. Praeterea litterarum obligatio fieri uidetur chirografis et syngrafis, id est, si quis debere se aut daturum se scribat, ita scilicet, si eo nomine stipulatio non fiat. quod genus obligationis proprium peregrinorum est.
Datio & numeratio pecuniae
MUTUUM
Interrogatio & responsio
conditio certae creditae pecuniae CHIROGRAPHUM
SPONSIO
LABEO D. 50.16.19 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 συνάλλαγµα 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.
COLLATERALS IN GENERAL
STIPULATION: PERSONAL COLLATERALS
REAL SECURITIES: PLEDGE/HYPOTHEC
PERSONAL COLLATERAL
✦
Creditor: Do you promise to give me 1000?
✦
Debtor: I do promise.
✦
Creditor: Do you promise the same?
✦
Guarantor: I do promise.
✦
Effect: ✦
Two parallel obligations (obviously indivisible)
TYPES AND DIFFERENCES
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
✦
B. Fidepromissio (Fide promittis/Fide Promitto)
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
✦
B. Fidepromissio (Fide promittis/Fide Promitto)
✦
C. Fideiussio (Fide iubes?/Fide iubeo)
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
✦
B. Fidepromissio (Fide promittis/Fide Promitto)
✦
C. Fideiussio (Fide iubes?/Fide iubeo) ✦
Citizens (A), aliens (B), final form (C)
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
✦
B. Fidepromissio (Fide promittis/Fide Promitto)
✦
C. Fideiussio (Fide iubes?/Fide iubeo) ✦
Citizens (A), aliens (B), final form (C) ✦
Temporality (up to two years)/non inheritability in (A) & (B)
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
✦
B. Fidepromissio (Fide promittis/Fide Promitto)
✦
C. Fideiussio (Fide iubes?/Fide iubeo) ✦
Citizens (A), aliens (B), final form (C) ✦
✦
Temporality (up to two years)/non inheritability in (A) & (B) only other verbal obligations may be secreted by (A) & (B)
TYPES AND DIFFERENCES ✦
A. Sponsio (Spondes?/Spondeo)
✦
B. Fidepromissio (Fide promittis/Fide Promitto)
✦
C. Fideiussio (Fide iubes?/Fide iubeo) ✦
Citizens (A), aliens (B), final form (C) ✦
✦
Temporality (up to two years)/non inheritability in (A) & (B) only other verbal obligations may be secreted by (A) & (B)
Real securities
P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia
P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia ✦
Mancipatio
P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia ✦
Mancipatio
✦
Usureceptio fiduciae causa
P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia ✦
Mancipatio
✦
Usureceptio fiduciae causa
✦
Actio fiduciae
P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
✦
Fiducia ✦
Mancipatio
✦
Usureceptio fiduciae causa
✦
Actio fiduciae
Pledge (pignus)
P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia ✦
Mancipatio
✦
Usureceptio fiduciae causa
✦
Actio fiduciae
✦
Pledge (pignus)
✦
Mortgage (hypotheca) P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia ✦
Mancipatio
✦
Usureceptio fiduciae causa
✦
Actio fiduciae
✦
Pledge (pignus)
✦
Mortgage (hypotheca) P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
Real securities ✦
Fiducia ✦
Mancipatio
✦
Usureceptio fiduciae causa
✦
Actio fiduciae
✦
Pledge (pignus)
✦
Mortgage (hypotheca) P. Wisc. II 54 (117 AD Arsinoe): contract of hypallagma: Isarous mortgages her slave Sarapias for a loan of 456 dr.
PLEDGE
PLEDGE • Constitution
PLEDGE • Constitution • Contract of pledge
PLEDGE • Constitution • Contract of pledge • Made by handing over of the thing pledged
PLEDGE • Constitution • Contract of pledge • Made by handing over of the thing pledged • Protection
EXECUTION OF REAL SECURITIES • lex commissoria – forfeiture clause • pactum de vendendo [tacit element of the contract of pledge in classical times] • The pledgee sells the pledge, deducts his debt from the price and turns what is left over the the pledger • pactum antichreticum - right to use.
ADDITIONAL AGREEMENTS
IN THE CONTRACT OF PLEDGE
MORTGAGE
MORTGAGE • ? Hellenistic origins?
MORTGAGE • ? Hellenistic origins? • Roman application:
MORTGAGE • ? Hellenistic origins? • Roman application: • Lease of Land
MORTGAGE • ? Hellenistic origins? • Roman application: • Lease of Land • Practicability
MORTGAGE • ? Hellenistic origins? • Roman application: • Lease of Land • Practicability • Execution of mortgage
HOW TO EXECUTE
A MORTGAGE?
HOW TO EXECUTE
A MORTGAGE?
• Interdictum Salvianum
HOW TO EXECUTE
A MORTGAGE?
• Interdictum Salvianum • Later applicable in case of possessory pledge as well
PROTECTION
PROTECTION • Interdictum Salvianum
PROTECTION • Interdictum Salvianum • Later applicable in case of possessory pledge as well
PROTECTION • Interdictum Salvianum • Later applicable in case of possessory pledge as well • Actio Serviana – originally only for hypothec
PROTECTION • Interdictum Salvianum • Later applicable in case of possessory pledge as well • Actio Serviana – originally only for hypothec • Actio Serviana utilis – for possessory pledge since the codification of the Edict (II cent. AD)
PROTECTION • Interdictum Salvianum • Later applicable in case of possessory pledge as well • Actio Serviana – originally only for hypothec • Actio Serviana utilis – for possessory pledge since the codification of the Edict (II cent. AD) • Pledge and hypothec as rights in alien property.
Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
HYP OTH EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
HYP Interdictum
OTH Salvianum EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
HYP Interdictum
OTH Salvianum EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
Interdictum
Salvianum
HYP Interdictum
OTH Salvianum EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
Interdictum
Salvianum
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
Interdictum
Salvianum
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA
PLEDGE
Interdictum
Salvianum
Actio Serviana utilis
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA Actio fiduciae PLEDGE
Interdictum
Salvianum
Actio Serviana utilis
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA Actio fiduciae PLEDGE
Interdictum
Salvianum
Actio Serviana utilis
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA Actio fiduciae PLEDGE
Interdictum
Salvianum
Actio Serviana utilis
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA Actio fiduciae PLEDGE
Interdictum
Salvianum
Actio Serviana utilis ‘difference only in words’
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
Justinian
FIDUCIA Actio fiduciae Actio Serviana utilis
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
‘difference only in words’
PLEDGE
Interdictum
Salvianum
Justinian
FIDUCIA Actio fiduciae Actio Serviana utilis
HYP Interdictum
Actio
OTH Salvianum Serviana EC Archaic law
Preclassical Law
Classical
Law
‘GENERAL’ HYPOTHEC
‘difference only in words’
PLEDGE
Interdictum
Salvianum
Justinian
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
• D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
Application
✦
D. 20.1.5. Marcianus, On the Hypothecary Formula. It must be remembered that property can be mortgaged for any kind of an obligation whatsoever where money is lent, a dowry bestowed, a purchase or sale made, a leasing and hiring concluded, or a mandate given; also where the obligation is absolute, or where it is for a certain time, or under some condition, or where it is assumed in pursuance of an agreement, or to secure a present indebtedness, or one previously contracted. Property can also be mortgaged on account of an obligation to be contracted hereafter, it can be done not only to secure the payment of an entire sum of money but also only a portion of the same, and it is also available in civil or praetorian obligations, as well as in those which are merely natural. Hypothecation in a conditional obligation is not binding, however, unless the condition is complied with. (1) The difference between a pledge and an hypothecation is only one of words.
Happy Easter
Wesołych Swiat! !XristÚw én°sth1. élhy≈w én°sth1
Happy Easter
Wesołych Swiat! !XristÚw én°sth1. élhy≈w én°sth1
Gospel
of the Wife of Jesus
Chag Pesach
Kasher veSameach
Chag Pesach
Kasher veSameach
• On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a
young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.
• On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a
young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.
• 1. Imagine that the heirs did not know that the mule was lent.
They do not want to give the animal back. Advice Pulcher, whom should he sue and how?
• On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a
young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.
• 1. Imagine that the heirs did not know that the mule was lent.
They do not want to give the animal back. Advice Pulcher, whom should he sue and how?
• 2. Will the solution under (1) change, if the mule, being pastured on a meadow of Onesimos’ farm was stolen on the Kalends of September by an unknown thief? Why?
• On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a
young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.
• 1. Imagine that the heirs did not know that the mule was lent.
They do not want to give the animal back. Advice Pulcher, whom should he sue and how?
• 2. Will the solution under (1) change, if the mule, being pastured on a meadow of Onesimos’ farm was stolen on the Kalends of September by an unknown thief? Why?
• 3. What if the heirs, having restored the mule, found out that
their father had paid 120 denari of veterinarian expenses. What may each of them do? When and why?
• On the Kalends of January150 AD Aulus Sulpicius Pulcher lent a
young mule to his freedman Aulus Sulpicius Onesimos to work at the latter’s farm until the harvest of this year. During the harvest an unlucky accident happened: Onesimos was struck by a lighting bolt and instantly died. The deceased’s estate was overtaken by his two sons, Primus Sulpicius Onesimos and Secundus Sulpicius Onesimos.
• 1. Imagine that the heirs did not know that the mule was lent.
They do not want to give the animal back. Advice Pulcher, whom should he sue and how?
• 2. Will the solution under (1) change, if the mule, being pastured on a meadow of Onesimos’ farm was stolen on the Kalends of September by an unknown thief? Why?
• 3. What if the heirs, having restored the mule, found out that
their father had paid 120 denari of veterinarian expenses. What may each of them do? When and why?
• 4. Let us assume that the heirs, not knowing that the mule did
not belong to their father sold it Gaius Aquilius Cinnamus. What is his legal position and why?