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Loan for use and pledge in the Roman law

This post is also available in: Polish (polski)

Court scene in old Rome expulsion of the Sophists, 1899, by Paget, Henry Marriott
Court scene in old Rome - expulsion of the Sophists, 1899, by Paget, Henry Marriott

Apart from loan for consumption (mutuum) and deposit (depositum) there were other real contracts in the Roman law – loan for use (commodatum) and pledge (pignus). Loan for use emerged towards the end of the Republican era as a result of the need to regulate the everyday practise of using object which belong to other people.

Apart from the role of mutual help by family members loan for use served as a way of utilising idle means of production. In order to enter loan for use the lender would give the borrower a specific thing free of charge and under the obligation of returning it at a specified time. The ownership was not transferred to the borrower, he would be only the holder. Only specific and non-consumable objects, usually mobile, could be the object of such a loan. The borrower bore the normal maintenance costs of the loaned thing and was responsible for carelessness and use contrary to the contract, which was prohibited (furtum usus). He had the right to hold the object (actio commodati iudicium) and the right to keep it until a due is returned (ius retentionis). The lender on the other hand could not demand for the object of the loan to be returned before the agreed time and if he took it back before that time a theft of own thing was committed (furtum possesionis, furtum rei suae). He also had to reimburse the borrower for all the costs and expenses exceeding the normal maintenance costs. Loan for use was a contract based on good will (bonae fidei) and an incomplete bilateral contract – it means that at the time of contract creation there was only one obligation but under some circumstances another one could be created (for example if the borrower incurred extra costs).

The pledge in Roman law was a form of securing an existing obligation by transferring a thing from the pledgor to the pledgee. Things specified individually, both mobile and immobile, could be the subject of a pledge, sometimes also things specified with respect to their type. The pledgee could not use the object and was obliged to return it upon the payment of the debt by the pledgor while keeping it in good shape until that time. If he used the thing, he could be accused of furtum usus. The pledgor had to cover the costs incurred by the pledgee as well as reimburse him for any losses caused by keeping the subject of the pledge. If the pledgee did not want to return the object after the debt was paid, the pledgor could use actio pigneraticia directa, which was an action used for retrieval of objects. Similarly to the loan for use, the pledge was an incomplete bilateral contract based on good will. The contract of pledge could be modified with the use of various pacta. Pactum de vendendo, which means agreement on sale, let the pledgee to sell the object of the pledge but he had to return any surplus to the pledgor. Another modification was pactum antichreticum, which was an agreement that let the pledgee to use the thing in his safekeeping. Until some time there was also a clause for forfeiture of the object of the pledge – lex commissoria (it was prohibited by Constantine).

Author: Jakub Ernt
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  • Stanisław Tylbor, Rozwój historyczny zastawu (pignus) w prawie rzymskiem, Warszawa, 1922, Skład Główny w Książnicy Polskiej T. N. S. W.

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