Courage
The mutuum ( Latin loan ) was a real contract under Roman law for the transfer of a sum of money.
description
The mutuum consisted of a loan agreement in which the creditor ( creditor , mutuo dans ) transferred money or defensible items ( res fungibiles ) to the debtor ( debitor , mutuo accipiens ) , whereby the debtor undertook to return the same type and quality on the due date . The mutuum in Roman law was free of charge, which is why interest had to be agreed separately through stipulation . Most of the time it was a question of courtesy loans among friends, but also to increase reputation, to create dependencies or in expectation of a consideration (remuneration). The Romans also granted such loans to his clientele.
Origin and development
For the money loan, the ancient Roman law had a form business in which the loan liability was established as a monetary debt ( Latin aes et libram ) (so-called nexum ). In addition, there was the form-free mutuum. The mutuum belongs to the ius gentium , forms of contract accessible to the peregrines. The etymology of the word is unclear: The Romans derived mutuum from “that mine becomes yours” ( Latin ex meo tuum fit ). Today, however, one starts from the origin "move, change" ( Latin movere, mutare ):
“Already in the earliest times, contracts on traffic and legal consequences must have been concluded with (...) friendly peoples and the basis of private international law (ius gentium), which has gradually developed in Rome alongside land law. One trace of this legal education is the strange mutuum, the “change” (from mutare; like dividuus); a form of loan which, unlike the nexum, is not based on a binding declaration expressly made by the debtor before witnesses, but on the mere transfer of money from one source to the other and which as evidently arose from intercourse with strangers as the nexum was from the native Business dealings. It is therefore characteristic that the word recurs as μοίτον in Sicilian Greek; with which is to be connected the reappearance of the Latin carcer in the Sicilian κάρκαρον. Since it is linguistically certain that both words are originally Latin, their occurrence in the Sicilian local dialect is an important testimony to the frequent traffic of Latin boatmen on the island, which prompted them to borrow money there and the culpability that is everywhere in the older rights the consequence of the unpaid loan is to submit. "
dogmatics
The mutuum came about through the transfer of ownership of a thing that could be determined in terms of number, measure and weight. Mostly it was a sum of money, the dedication of which led to the repayment obligation in the same amount. The obligation to pay back was generic ( Latin tantundem eiusdem generis ).
The mutuum was a real contract that required the subject's surrender. Any previous agreements did not result in a verbal contract ; as nuda pacta, they were legally non-binding. The creditor was able to track the loan repayment with the actio certae creditae pecuniae . An informal agreement that interest should be paid on the loan did not create any liability. As the main agreement it would have created an unrecognized type of contract , as a subsidiary agreement it was irrelevant in a iudicium stricti iuris . The handover was usually based on an agreement on purpose ( Latin causa credendi ), through which the business differed from the loan or other legal transactions .
In the Roman legal system there was a reluctance to involve third parties in legal transactions ( Latin quod ex meo tuum fit ). The obligation was referred to as a personal legal bond ( Latin vinculum iuris ). In principle, there was no direct representation in Rome, but other constructions to achieve the same purposes. That is why there were exceptions in Roman law that made it possible for one person to act legally with effect for another person: In addition to the adjective lawsuits , there was the loan agreement or its payment in someone else's name.
Middle Ages and Modern Times
In some codifications, the loan has still been designed as a real contract (cf., for example, Section 983 ABGB as amended to BGBl. I No. 28/2010; Section 607 BGB old version ); differently Art. 312 ff. OR ). Until 2010, the Austrian ABGB understood the loan as a real contract and the commitment to give a loan soon as a “preliminary contract”, § 936 ABGB). The legislature of the German BGB had used a neutral formulation for loan ( § 598 BGB) and custody ( § 688 BGB). The question of the legal nature of these contracts should be left to science. In the past, it was largely assumed that all three contracts were real contracts. Today, after the reform of the law of obligations, the loan contract of the BGB is a consensual contract that comes about through two concurrent declarations of intent (§ § 488 I, 607 I BGB). The regulation no longer assumes that the loan is free of charge. Rather, it is based on today's realities, according to which a loan is usually paid for. The regulations are optional so that free loans are also permitted. It follows from the reimbursement obligation that the loan to the borrower must have been valued, since the borrower cannot be obliged to reimburse an amount of money that he has not received or otherwise used.
literature
- Honsell : Roman law . 6th edition. Berlin 2006.
- Jörs , Kunkel , Wenger : Roman private law . 3. Edition. Berlin 1949.
- Honsell, Mayer-Maly , Selb : Roman law . 4th edition. (Continuation of the previous one) Berlin 1987, ISBN 3-540-16866-4
- Klinck: Acquisition by handing over to a third party in classical Roman law . Diss. Berlin 2004.
- Weyand: The pass-through acquisition in the legal second . Diss. Göttingen 1989.
- Paul Münster: The conversion of a deposit into a mutuum or an irregular deposit . Diss. Rostock 1907
Remarks
- ↑ D. 12.1.2.2 .; Gaius III 90.
- ↑ cf. D.12.1.2.2.
- ↑ Ulpian, D. 2.14.7.4: Sed cum nulla subest causa, propter conventionem hic constat non posse constitui obligationem: igitur nuda pactio obligationem non parit, sed parit exceptionem.
- ↑ cf. D. 12.1.1.1 .; D. 12.1.2.3.
- ↑ Ulp. D. 12.1.15, cf. also Afr. D. 17.1.34 pr .; Pap.-Ulp. Eod. 10.4; Jul. D. 46.1.18, also payment by a third party on behalf of the giver (Ulp. D. 12. 1.9.8).