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34 Cards in this Set
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How does Justinian classify depostium ? What were the contracts re What was depostium ? To whose benefit was a depostium agreement ? what if you wanted to pay someone to make a deposit ? |
Justinian classifies it as one of his real contracts- those contracts were the the obligation arises not from agreement alone, although agreement is required, but from delivery of the res coporalis. Depositum was the handing over of a thing with the intention of handing it over for safekeeping not for the use of the other party. It was therefore exclusively for the benefit of the transferor.It was gratuitous, it in order to make the deposit this was a contract of locatio conductio operis faciendi. |
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What sort of things could be deposited ? Could a thief or someone who held a thing under contract deposit things ? When did the depositee have to restore the thing ? Was he allowed to use the thing ? |
Deposit could only be made of a movable thing since only detention passed, deposit by a thief or one who held the thing under a contract could be valid but it might be in breach of their own contractual obligations. Depositee had to restore the thing when this was asked of him, whether or not they had agreed a specific period at the time when they made the agreement. He was not allowed to use the thing and if he did he would be guilty of furtum. |
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Was it a bilateral or unilateral contract ? What could the depositor be held liable for ? What was the action against the depositee, if successful what would be the consequences ? What was the action against the depositor- what effects ? |
It was an imperfectly bilateral contract meaning that both parties had obligations and liabilities although they had different ones. depositor being the beneficiary of the contract could be liable for culpa levis in abstracto, dolus and for expenses incurred by the depositee when looking after the thing or for damaged caused to him by the thing. the action agains the depositee was the actio depositi directia and if it was successful the defendant would owe damages and also become infamis. the action agains the depositor was the actio depositi contraria and by contrast with the actio directa judgement against him did not involve infamy. |
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What was depositum miserabile Was the degree of liability for the depositee increased- what special features did this version of depostium have ? |
Depositum miserabile was a deposit made in a time of stress e.g fire, shipwreck or the like, in which the situation did allow the depositor to select the person whom to give his goods too. the degree of liability of the depositee was not increased, he would have to pay double damages in an action brought against him by the depositor. |
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What was squestratio What was it a type of ? When would it normally be used ? How was it different to normal deposit ? |
Sequestratio was a deposit made by two or more persons jointly, the recipient (sequester) had to give the thing back to one of them in circumstances specified at the time of the deposit. This would normally be used if there was some dispute over the title. If he delivered it to either person before the issue of title had been settled he would be in breach of his obligation. In contrast to a normal depostium, sequestratio gave interdictal Possession of the thing and therefore preventing the usucapio from completing with one of the parties. |
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What was depostium irregular How was it different to regular deposit ? What did some people say about this version of deposit ? what did Gaius / Justinian think of it |
Depositum irregular was a deposit of money usually with a banker , with the intent of the deposit being that the recipient should restore an equivalent amount as a whole or in instalments when it was asked. Ownership of the deposit passed to the depositee. Some people say when ownership passed it was a contract of murtum and this might be what Gaius would have thought but Justinian saw it as a contract of depositum. |
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What type of contract was commodatum ? What was it a contract for ? How were mutuum and commodatum different ? |
Contract arising from re It was a loan for use of a specific thing which had to be handed back at the end of the period or otherwise deposed of as agreed at the time the loan was made. In mutuum when the thing was loaned the specific thing became the the borrower’s with the expectation that he return a similar thing. In commdatum the the borrower was expected to return the specific thing and so only had detention. |
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Did the requirement to return the exact thing in commodatum prevent perishables being the subject of the agreement ? Whats an example Thomas gives ? What action was it originally enforced by ? What happened over the course of time ? |
This did not prevent the borrowing of perishables. Thomas tells us there could be a perfectly valid commdatum of money for example spending extra cash across a money lenders table. It was originally only protected by praetorian actio n factum and this action was still used under classical law. It appears to have been accepted as a civil contract with bonae fidei actions in the course of the first century of Empire and so certainly had this by the time Justinian was writing |
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What was the borrower in a commodatum agreement required to show the object ? What usage of the object was he allowed ? give an example of these requirements in action ? Just because someone treated their objects in a certain way as paterfamilias did this make such treatmeant acceptable under commodatum ? |
Had to show the bare of a bonus paterfamilias and was therefore liable for culpa levis in abstracto. (judged by an abstract or objective standard) He could only use the thing within the terms of the contract and in conformity with its nature. This therefore meant if a book had been lent for the purpose of reading the borrower would be in breach of the contract if he used it as a door stop. One might treat their own books in this way but as it was judged by an objective standard this not acceptable. |
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What did unauthorised use render the borrower in a commodatum agreement liable for ? Was this the case even if was damage through acts of god What if it was used in a way which was directly prohibited ? What if it was stolen while being used in an unauthorised fashion ? |
Unauthorised used of the thing rendered the borrower liable for any loss or damage even if this damage was caused through causus or maior if these occurred while the object was being used in an unauthorised fashion If it had been used in a way which the lender directly prohibited this would be a delict of theft. If the thing was stolen while being used in a way which was not permitted by the contract the lender could bring an actio furti against the thief and the borrower would have to bring his own against the thief. |
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In commodatum what duties were the lender under ? What did have to led the borrower do? What expenses did he have to reimburse the lender for ? What was he liable for ? |
The lender had to let the borrower enjoy the thing in the contracted way Reimburse him for any exceptional expenses incurred by the borrower when looking after the thing: paying for medical treatment for a sick slave. liable to the borrower for defects he knew about the borrowed thing. he was therefore liable for any damage caused through these defects |
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When was commodatum created ? Was there only one requirement for its creation ? |
Commodatum was a real contract as the obligation from it was not created until the res it was concerning had been delivered. However, this did not mean that agreement was not a requirement for the contract to be created and it was still necessary for a binding contract. |
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How is the position of the borrower different in commodatum and mutuum What did the beneficiary of commodatum have to do with the fruits or acquistions made by the res during the agreement and why ? |
This is clearly a different position for the borrower and expectations are different in commodatum, as the borrower is expected to return the exact res and not an equivalent. In commodatum the borrower only has dentention of the thing in mutuum he has ownership. As beneficiary only had detention of the res in question and not ownership or possession, any fruits or acquisitions made by the res had to be returned to the owner at the end of the agreement. |
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Under classical law what loss was the commodatum borrower liable for ? What was maior ? Under Justinian what would happen if the thing got stolen ? |
Under classical law he was liable for all circumstances of loss other than cuasa or viss maior if he had used the object in a way which was allowed under the contract. Maior being acts of superior force, including acts of god and robbery. This therefore meant that he would be liable for the thing if it was stolen and it was he could bring the actio furti against the thief. Justinian changed this and allowed the lender to take direct action against the thief if he wished. |
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What is an example of a defect which the object of a commodatum agreement might suffer from ? Would the lender always be liable for such defects ? |
Thomas gives the example of leaky jars, which cause the borrowers liquid to leak out. However the states, the owner would not be liable if defects in the res had been mentioned at the time of the making of the contract. |
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How many contracts re were there in Justinian's institutes ? How many in Gaius's ? What is the reason behind this |
The four real contracts were: mutuum, commdatum, depostium and pignus under Justinian in the institutes of Gaius only puts mutuum in his section on real contracts. .Thomas highlights the fact that, while Gaius does see that agreement is the factor which separates contractual from non contractual obligations re, but he still sees the foundation of both the old idea of ‘real’ debt; and the old unity is for him still preserved in the the single action which sanctions such debts, the condictio. |
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How are the contracts missing from Gaius's list different from mutuum ? Is this why they are off his list ? |
Comodatum, depositum and pignus have no connection with this old idea. There no transfer of ownership; they are bilateral and bonae fidei and they are praetorian in ownership. this is why they were excluded from Gaius’s category of obligations as he understood it. |
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Does mutuum function the same under Gaius and Justinian ? What was mutuum ? What was the borrower obliged to do at the end of the agreement ? |
Mutuum functions the same under both the institutes of Gaius and Justinian. It was a loan for consumption not simply for use and thats why this type of loan was normally applied to the things which through usage would be consumed. As the thing was expected to be consumed the borrower was obliged to return the exact thing back and instead he would have to bring something back of the same quality and quantity. |
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In mutuum did the transfer of the thing need to go direct from lender to borrower ? |
The transfer of the thing did not need to be direct from the lender to the borrower, any valid form of traditio would do: for instance, the lender might give the borrower something to sell,autheorising him to keep the proceeds. |
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Could any interest arise for one party out of mutuum agreement ? Once someone entered into a mutuum agreement what sort of obligation were they under ? If one of the parties wanted to pay interest how could they do this |
The obligation was simply to return the thing, so no interest could arise from the mutuum itself. Once a person entered into the agreement he was under an absolute duty to restore the equivalent amount no matter if there was any dolus or culpa Any interest might be required to be paid by one of the parties would have to be made in a separate stipulatio. |
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Why does Thomas say mutuum wasn't that important as a contract ? What would a lender have to do if they wanted interest ? what would be more convenient ? |
Thomas tells us that mutuum was not that important important due to the fact that any large loan would normally have interest. If the lender wanted interest if they used mutuum as the contract for the loan a separate stipulatio would be required. It would be more convenient to do both the undertaking to repay the capitial and the undertaking to repay the interest in the same sitpulatio and thereby enable both to be claimed in the same action. |
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What was pignus ? How was it different to fiducia ? |
It was a form of security for a loan by transferring one of your possessions to another. While it did transfer possession it did not transfer ownership- therefore the transferor was better protected than under fiducia which did transfer ownership. |
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Did Pignus always grant the same sort of detention to the creditor - what sort of detention did it give in its developed form ? When did this type of detention come into existence ? What did the actio serviana do ? |
this was not the case when it first came into existence, it gave the creditor neither ownership or possession but a bare ius in re aliena. This type of detention of a thing came into existence after the praetor created the actio serviana which was an action in rem. The actio serviana allowed a land lord or creditor to assert a claim to anything which had been declared security for the loan. |
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What happened to the actio serviana over time ? what could be subject to a pignus contract ? |
Eventually over time the use of this action was extended to all cases of pledge whether possession had been given or not. It seems originally that pignus only applied to movables- in developed law it could also be used on land. |
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In a pignus agreement what were both the creditor and the borrower liable for ? What was the creditor not allowed to do with the object used as security ? What happened with any fruits that the thing might accure |
They were both liable for culpa levis in abstracto. - ( culpa judged by an abstract or objective standard) is the original, undifferentiated culpa— failure to show the due diligence of a bonus paterfamilias . The creditor was not allowed to use the thing or profit by it and anything which it did accrue through fruits ect went to pay off the first interest upon and then the capital debt. |
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what was a fairly common arrangement when it came to land which had been pledged ? What was this arrangement called ? What did the creditor have to do at the end of the agreement- what could he claim for ? |
It was fairly common that where land was pledged the creditor should have the produce in lieu of interest- this arrangement was known as anticheresis. The creditor had to restore possession when the debt was discharged, along with any fruits , he could also claim reimbursement of any expenses properly incurred through him looking after the thing. |
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what was the rules about the pledgor and his security ? When could the pledger use the actio directa to get his thing back ? What did the fact that pignus was a bonae fidei contract mean ? 2 things ? |
The pledgor could be held liable if whether he knew or not his title to the security was defective if this had the effect of making it so the thing did not in fact constitute an effective security. He could only use the actio directa to get back the thing when he had discharged his principal obligation. Due to the fact it was a bonae fidei contract , the parties could vary this basic duties by simple agreement. As time progressed it became standard that the creditor had rights of sale and foreclosure. Bonae fidei also meant that the iudex could take good faith into account without the need for an exceptio |
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What were the rules regarding foreclosure of a pignus agreement during Gaius's period How had this changed by later classical law ? What agreement might the two parties come up with ? |
During Gaius’s life time - it was customary to agree that if the debt was not paid by an agreed date, the creditor should be entitled to sell the pledge. In later classical law this power was granted to the pledgee unless expressly excluded. Sometimes the two parties might come to an agreement whereby if the principal obligation was not discharged by a certain date ownership in the pledge should transfer to the pledgee. |
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What were the rules in regard to the foreclosure of a pignus agreement during Justinian's age ? What happened if no one wanted to buy the pledgor's thing ? If the thing was taken into the creditor's ownership what option did the pledger still have and for how long ? What if the thing was sold |
During Justinian’s life time - Subject to the agreement made by the two parties there could be no sale of the pledge object until two years after notice or judgement against the debtor. If no one wanted to purchase the pledge object the court would settle a time for payment and if this passed without payment the creditor would become owner of the pledge. Even after this the pledgor could still get ownership of the thing back within two years if he paid in full including interest and costs. If the thing was sold the debtor got any excess money after the debt had been discharged. |
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What is fiducia ? When was it used ? |
A form of loan whereby the debtor would grant ownership of one of his possession as security for the loan which he received from the creditor. It was used throughout the classical period, pignus was also used during this period. |
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Why would someone want to have a fiducia agreement ? What might happen without a fiducia agreement ? |
If a creditor lends a money to another, the creditor will likely want to have some other way of satisfying the obligation rather than an action in personam against the debtor. This would protect them from the possibility that when they call upon the debtor to pay the debt, the debtor is insolvent or if they have disappeared |
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What protection did a fiducia agreement grant a creditor ? How would the debtor transfer ownership of the thing ? and on what basis |
he would have security for the loan through the granting of ownership of one of the debtors things. If the debtor didn’t pay he could then sell this thing. The debtor would transfer ownership via mancipatio or in iure cessio on the understanding that the thing would be transferred back upon the discharge of the obligation. |
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why was fiducia bad for the debtor ? 2 reasons |
He had no right in rem and therefore if the creditor sold the security in breach of the undertaking the only remedy he would have would be against the creditor. It was also bad because if the pledgor granted ownership of something worth more and then didn’t pay back the debt, the pledgee could sell this and the pledgor would not be entitled to the money surplus to the agreement. |
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What was it enforceable by/ what were the duties of both parties Duties for the creditor ? Duties for the debtor ? How could the creditor enforce the duties of the debtor ? |
Seems enforceable fairly early on by the praetorian action in bonum et aequum. The creditor was not allowed to profit from the security- any fruits he received through it went to pay off the debt or reducing the capital sum. The debtor was required to reimburse the creditor for any improvements he made in the thing/ any costs of maintaining. The creditor could enforce this via the actio fiduciae contaria. |
