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p780 Mutuum

Article by George Long, M.A., Fellow of Trinity College
on p780 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

MU′TUUM. The Mutui datio is mentioned by Gaius as an instance of an obligatio "quae re contrahitur." It exists when things "quae pondere, numero, mensurave constant," as coined money, wine, oil, corn,º aes, silver, gold, are given by one man to another so as to become his, but on the condition that an equal quantity of the same kind shall be returned. The difference in the thing which is lent constitutes one of the differences between this contract and commodatum. In the mutui datio, inasmuch as the thing became the property of the receiver, the Roman jurists were led to the absurdity of saying that mutuum was so called for this reason (quod ex meo tuum fit). This contract gave the lender the action called condictio, provided he was the owner of the things, and had the power of alienation: otherwise he had no action till the things were consumed. If the borrower lost the things by any accident as fire, shipwreck, &c., he was still bound: the reason of which clearly was, that by the Mutui datio the things became his own. It was a stricti juris actio, and the lender could have no interest for a loan of money, unless interest had been agreed on. The borrowing by way of Mutuum and at interest are opposed by Plautus (Asin. I.3.95). The Senatusconsultum Macedonicum did not allow a right of action to a lender against a filiusfamilias to whom he had given money "mutua," even after the death of the father. [Senatusconsultum Macedonicum] (Gaius, III.90; Inst. 3 14; Dig. 12 tit. 1 De Rebus Creditis; Cod. 4 tit. 1; Vangerow, Pandekten, &c. III § 623).


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