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WEEK 4 LECTURE 1: CONTRACTUS RE – MUTUUM CTN; COMMODATUM

Dear Students,

In Friday’s lecture, we started looking at the development of mutuum and briefly mentioned
contractus mohatrae. Today, we continue our discussion of contractus mohatrae after which
we move on to the prohibited instances of mutuum. Lastly, we will start to look at the second
example of contractus re nominati (named real contracts) namely commodatum (loan for
use).

We are busy with the movement in post-classical law closer towards the recognition of a
purely consensual loan. We discussed the three-party and two-party examples found in D 12
1 15. The next development we need to consider is contractus mohatrae (see additional notes
2.2).

iii. D 12 1 11pr (three party)

- To recap, contractus mohatrae involves the situation where an object is given but it was
agreed that the borrower can sell the object and keep the money as a loan.
- We saw that by the time of Diocletian, the parties agreed on an estimated value of the
thing delivered and the borrower incurred the obligation to return the estimated amount to
the lender. Even it the borrower was unable to sell the object or if he sold it for less than
the estimated value his obligation remained the same. He still had to repay amount
estimated at the start of the transaction.

Next, we need to consider the issue of risk.

Who bore the risk of the destruction of the object before a sale could occur? This depends on
the intention of the lender A – if A intends to do B a favour, especially without asking
interest, and not really to sell the object, then B bears the risk (as if he received the money).

What about interest? You have already learnt that interest could not be included in the
classical mutuum. However, interest could be added by way of stipulatio. This was the
position prior to the Middle Ages, when Canon law instituted an absolute prohibition on
interest even by way of stipulatio.

Schulz (p 510) regarded contractus mohatrae as a scheme to make provision for interest in
spite of the absolute prohibition on interest by the Canon law of the Middle Ages – even
interest by way of stipulatio.

Schulz gives the following example:

* B asks A for a loan. A does not immediately give B money but sells a res to B for a 100
coins. The parties agree that the purchase price is not immediately payable but only in
two months’ time (i.e., B does pay any money yet.)
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* B then sells the same res back to A for 80 coins. This purchase price is immediately
payable.
* A immediately pay 80 coins to B.
* Later, in two months’ time, B has to pay the original purchase price of a 100 coins to
A.
* Thus, in effect B “borrows” 80 coins for two months and then gives back a 100 coins.
The difference of 20 coins is actually interest!

The “sale” in the above example is merely a way to hide what is really happening – namely
that A is giving B 80 coins to use for two months after which time B needs to repay the 80
coins + 20 coins (interest) for a total of a 100 coins. Because of the prohibition on interest
they have to disguise the transaction in the form of contractus mohatrae.

– Prohibited instances: Loans to filiusfamilias

Between 69 AD and 79 AD, during the reign of Vespasian, the Senatus Consultum (SC)
Macedonianum came into effect. The SC prohibited mutuum money loans to a filiusfamilias
(a son still under the power of his father).

Why was the SC enacted? It is explained by the legend of Macedo who allegedly murdered
his paterfamilias (father of the family).

Ratio? Why would Macedo have murdered his father? The explanation given is that he
wanted to get money to pay his creditors BUT this reasoning is not convincing since a loan
could in any event not be enforced against a filiusfamilias while his father was still alive.

Alternative: An alternative explanation is that his father prohibited him from obtaining
further loans, but he wanted to continue with his extravagant lifestyle.

What was the real purpose of the senatus consultum? The real purpose was to thwart
unscrupulous moneylenders cf Zimmerman 178 – sons pressured by moneylenders to hasten
father’s death because then they can pay moneylenders.
- After the SC Macedonianum was enacted mutuum money loans to a filiusfamilias
remained unenforceable even after the death of the paterfamilias.

Later the working of the SC was tempered and mutuum money loans to a filiusfamilias were
regarded as valid if
1. The paterfamilias consented
2. The lender could not have known that he is lending to a filiusfamilias
3. The filiusfamilias ratified the loan after the death of the paterfamilias
4. The filiusfamilias was doing military service or was in the service of the state

Roman Dutch law kept rule with regards to sons under 25 years. In South African law the
rule no longer applies, but we do have general principles regarding contracts with minors.
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This brings us to the end of our discussion on mutuum. Our next topic is the second specific
contract in the category contractus re nominati namely commodatum or loan for use. We will
start with a general introduction of commodatum today and continue with the topic on Friday.
The parts of the Obligationes – additional notes prescribed for this part of the lecture is 2.1
and 2.3.

COMMODATUM (loan for use)

The second example of contractus re is commodatum (loan for use).
* Commodatum or loan for use involved a gratuitous loan of a thing. There is a duty to
return the same thing. The loan was usually for a specific purpose and a limited period.

What were the elements of commodatum?

1 As with all other real contracts consensus was required – agreement regarding the type of
contract and the transfer of the res.

2 Since commodatum is an example of a real contract the second element is datio – the
handing over of a corporeal thing. In the case of commodatum there is no transfer of
ownership – the recipient merely becomes detentor or holder.

Because there is no transfer of ownership the lender does not have to be owner of the res
in order to lend it → thus even a thief can lend something for use.

3 The third element is the purpose of the handing over of the res
a) It concerns the use of a thing/res for convenience (commodus)
- The res was usually non-consumable unless the loan was ad pompam et
ostentationem (for pomp and splendour). An example of a loan ad pompam et
ostentationem would be where A lends a bowl of exotic fruit (a consumable
thing) to B so that B may display the fruit as part of his decorations at a dinner
party he is hosting. Here the intention of the parties is not that the bowl of exotic
fruit will be consumed (thus no intention to replace it with an equivalent quantity
and quality) but rather that the same bowl of exotic fruit will be returned to A the
day after the dinner party.
- The res could be movable or immovable (although in the pre-classical period it
was questioned whether it could be immovable).

b) The intention had to be gratuitous use (no counter-performance) – thus it is

distinguished from lease where counter-performance is required. (Keep in mind, that
if a set of facts mentions counter-performance the contract you are looking at cannot
be commodatum or in fact any of the contractus re nominati.)

c) The intention also had to be to return the same thing. Remember that ownership was
not transferred. The res had to be returned after a specific period or if no period
specified after a reasonable time.
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– What was the origin of commodatum?

The term commodatum was derived from the Latin commodus (convenience) and datum
(give). Thus, given for convenience.

Commodatum developed out of the praetorian law of the late republic (beforehand informal).

– This brings us to the nature of the legal relationship

In contrast to mutuum, commodatum was based on bona fides (good faith) accordingly it was
negotium bona fidei.

Commodatum was also a bilateral contract – meaning both parties had rights and duties.
However, commodatum was an imperfectly bilateral agreement because the borrower always
had duties but the lender only in certain circumstances.

During the next lecture we will continue with the rights and duties of the parties in terms of a
commodatum contract.

REVISION QUESTIONS

1. Explain the concept contractus mohatrae.

2. Discuss the origin and purpose of the Senatus Consultum Macedonianum.
3. Define commodatum.
4. Discuss the elements of commodatum.
5. Explain the concept of an imperfectly bilateral obligation.

For further revision questions, in particular examples of problem case studies, see Obligationes –
Additional Notes pp. 19 – 20 (questions include all contractus re and not relate exclusively to
mutuum & commodatum).