Real Contracts

Question 1

Basics of real contracts

Answer 1

• Formed by delivery of thing and requisite intention of both parties
• Whatever the level of care expected, if thing returned late, displaced the level of care

Question 2

Mutuum

Answer 2

• Loan of fungibles
• Unilateral & S.I.
• Required return of equitable thing (No regard to state of original)
• Ownership passed not just possession
• ‘Actio certae pecunaie creditae’ for money
• ‘Condictio triticaria’ for other means

Question 3

Commodatum

Answer 3

• Loan for use
• ‘Imperfectly’ bilateral & BF
• Borrower required to return & Lender to pay expenses of B’s use
• Detention transferred
• Had to be gratuitous
• Liable for Culpa levis in abstracto (Fails to meet standard of bonus paterfamilias)
• No culpability for vis maior if unavoidable accident
• Took on journey then guilty for any mishap
• L –> B = Actio commodati. If stolen L—> B/ T & B could if chosen do actio contrari against the theif

Question 4

Despositum

Answer 4

• Deposit for safe keeping
• BF and imperfectly bilateral
• Theft if uses thing
• Liable for dolus not culpa
• Depositum miserabile: Deposit made in time of stress
• Sequestratio: Deposit made by two persons jointly
• Depositum irregulare: deposit of money with banker with nature that banker should restore amount when asked of him
• Action against depositee: Actio Depositee

Question 5

Pignus

Answer 5

• Evolved from giving of a security by transfer of possession but later developed to be a transfer of ius in re aliena
• Bona fidei & imperfectly bilateral
• Culpable for Culpa levis in abstracto
• Actio pignoratica