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:
Depositum, pignus,
Mutuum
commodatum
Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral
Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based upon good faith

Based on the strict law
(classical law)
Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based upon good faith

Based on the strict law
(classical law)
Obligation to perform
Obligation to give (dare)
(facere)
Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Fungible things Non-fungible things

Based upon good faith

Based on the strict law
(classical law)
Obligation to perform
Obligation to give (dare)
(facere)
Divisible Indivisible
Main differences:
Depositum, pignus,
Mutuum
commodatum
Unilateral (potentially) bilateral

Transfer of ownership Transfer of detention

Exception:
Fungible things
‘irregular’ types Non-fungible things

Based upon good faith

Based on the strict law
(classical law)
Obligation to perform
Obligation to give (dare)
(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 safe-
keeping (custodia)

Deposit: liability for fraud (dolus) and

perhaps gross negligence
 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 force-

majeure
 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 force-

majeure

• 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 force-

majeure

• 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 force-

majeure

• 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)
• 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?
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 YOU

My DEBTOR
 ME YOU
iussum (order)

My DEBTOR
 ME YOU
iussum (order)

t io
da iae
u n
ec
p

My DEBTOR
 loan for consumption
ME YOU
iussum (order)

t io
da iae
u n
ec
p

My DEBTOR
 loan for consumption
ME
fictitious transfer I YOU
iussum (order)

t io
da iae
u n
ec
p

My DEBTOR
 loan for consumption
ME YOU
fictitious transfer II
fictitious transfer I
iussum (order)

t io
da iae
u n
ec
p

My DEBTOR
 TRANSFER
loan for consumption
ME YOU
fictitious transfer II
fictitious transfer I
iussum (order)

t io
da iae
u n
ec
p

My DEBTOR
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 Ego

solutio
mandatum

Tu Tu
 Ego Ego Ego

solutio
mandatum

Tu Tu Tu
 Ego Ego Ego

solutio
mandatum

Tu Tu Tu
 Ego Ego Ego

solutio

datio
mandatum

Tu Tu Tu
 Ego Ego

mandatum

Tu Tu
 Ego Ego

mandatum

Tu Tu
 Ego Ego

mandatum

Tu Tu
 Ego Ego

Datio ficticia I
mandatum

Tu Tu
Tu
Ego

mandatum
Datio ficticia I

Tu
Ego

Datio ficticia II
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 B

A B

A B
1000
 Contractus mohatrae

A B

A B
A B

A B
1000
 Contractus mohatrae

A B

A B
A B

A B
1000
 Contractus mohatrae

A B

A B
A B

A B
1000
 Contractus mohatrae

A B

A B
A B
800
A B
1000
 Contractus mohatrae

A B

A B
A B
800
A B
1000
 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 t 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]u-
latus 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 & nume-
ratio pecuniae
Datio & nume-
MUTUUM
ratio pecuniae
Datio & nume-
MUTUUM
ratio pecuniae
Datio & nume-
MUTUUM
ratio pecuniae
 Spondes?

Datio & nume-

MUTUUM
ratio pecuniae
 Spondeo
Spondes?

Datio & nume-

MUTUUM
ratio pecuniae
 Spondeo
Spondes?

Datio & nume- Interrogatio

MUTUUM
ratio pecuniae & responsio
 Spondeo
Spondes?

Datio & nume- Interrogatio

MUTUUM SPONSIO
ratio pecuniae & responsio
 Spondeo
Spondes?

Datio & nume- Interrogatio

MUTUUM SPONSIO
ratio pecuniae & responsio

conditio certae creditae pecuniae

 KASER: Kombinierter/Hybridvertrag
Spondeo
Spondes?

Datio & nume- Interrogatio

MUTUUM SPONSIO
ratio pecuniae & responsio

conditio certae creditae pecuniae

 KASER: Kombinierter/Hybridvertrag
Spondeo
Spondes?

Datio & nume- Interrogatio

MUTUUM SPONSIO
ratio pecuniae & responsio

conditio certae creditae pecuniae

 KASER: Kombinierter/Hybridvertrag
Spondeo
Spondes?

Datio & nume- Interrogatio

MUTUUM SPONSIO
ratio pecuniae & responsio

conditio certae creditae pecuniae

CHIROGRAPHUM
 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 & nume- Interrogatio

MUTUUM SPONSIO
ratio pecuniae & responsio

conditio certae creditae pecuniae

CHIROGRAPHUM
 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.
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
✦ Fulfilment of mortgage
 Mortgage
✦ ? Hellenistic origins?
✦ Roman application:
✦ Lease of Land
✦ Practicability
✦ Fulfilment of mortgage
✦ Interdictum Salvianum
 Mortgage
✦ ? Hellenistic origins?
✦ Roman application:
✦ Lease of Land
✦ Practicability
✦ Fulfilment of mortgage
✦ Interdictum Salvianum
✦ Actio Serviana
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
 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.
Gospel 

of the Wife of Jesus
Chag Pesach 

Kasher veSameach
Chag Pesach 

Kasher veSameach
 Happy Easter
Wesołych Swiat!
!XristÚw én°sth1. élhy≈w én°sth1
 Happy Easter
Wesołych Swiat!
!XristÚw én°sth1. élhy≈w én°sth1