Understanding Mutual, Loan, and Deposit Contracts
Mutual (Mutuum)
Also known as a consumer loan, mutuum was a convention where one person (mutuante or lender) gave property to another (borrower), a certain amount of fungible goods, with the obligation to repay the same amount of the same kind and quality within a specific period. To enforce repayment, the lender could use the Condictio, either as Condictio certae pecuniae for money or Condictio triticaria for other goods. It was a condition of the loan contract because it lacked a specific action. As a unilateral contract, mutuum only resulted in action against the borrower if they acted with malice. The legis actio Aquiliae could be used to seek compensation for damages.
Key Elements of Mutuum
- Subjects:
- Mutuante: The lender.
- Borrower: The one who accepts and agrees to return the goods.
- Subject Matter: Fungible goods like money or cereals.
- Cause: Delivery of the goods.
- Actions: Actions at law for the return of the goods.
- Actio triticaria: If it was wheat.
- Actio certae creditae pecuniae: If it was money.
Maritime Loans
Involved a person paying a shipowner to transport a commodity, with the money intended to reach a port to buy merchandise. The borrower was responsible for paying for guilt, deceit, and assuming the risk of unforeseeable circumstances.
Muto involved borrowed money to invest and be repaid with interest, unlike a loan for use (free).
Loan (Commodatum)
Commodatum was a convention where one person (bailor) freely provided a non-expendable thing to another (bailee) for use, with the obligation to return it in the agreed place and time. It was also called a loan for use.
Key Elements of Commodatum
- Subjects:
- Lender (Bailor): The one who delivers the thing.
- Borrower (Bailee): The one who accepts and agrees to return it.
- Subject Matter: Non-consumable things, including real estate.
- Cause: Delivery of the thing for intended use.
- Actions:
- Action by the lender for the return of the thing.
- Action by the borrower for expenditures on the thing; the thing could be retained until payment by the lender.
The borrower was responsible for guilt, deceit, custodial duties, and theft, but not for accidental loss.
Deposit (Depositum)
Depositum was a contract where one person (depositor) provided a movable item to another (depositary) for free care or custody, with the obligation to return it upon demand.
It was a real contract, perfected with the delivery to the depositary. The delivery did not imply transfer of ownership or possession, only real possession.
Key Elements of Depositum
- Subjects:
- Depositor: The one who delivers the thing.
- Depositary: The one who guards the thing.
- Subject Matter: Non-consumable personal property that can be individualized.
- Actions:
- Obligations: The depositary was liable for damages caused by the thing and to reimburse expenses.
- Direct Action: To restore the deposit.
- Contrary Action: For the payment of unthinkable (compensation).
The depositary was responsible for fraud and gross negligence, but not mild negligence.
Special Deposits
- Required: (Fire and Disaster) Refusal to accept it after agreeing obligates one to pay double.
- Irregular: (Money or things)
- Sequestration: Property is placed on deposit in the hands of a sequestrator until litigation is resolved.