from Wiktionary, Creative Commons Attribution/Share-Alike License
- n. a loan in Roman and civil law of fungible things to be restored in similar property of the same quantity and quality
- n. a contract in which movables are so loaned
- n. a loan for consumption
from The Century Dictionary and Cyclopedia
- n. In Scots law, a contract by which such things are lent as are consumed in the use, or cannot be used without their extinction or alienation, such as corn, wine, money, etc.
Hence they use each other by turns, a “puerile practice” known as Alish – Takish, the Lat. facere vicibus or mutuum facere.
The essential thing to notice in this explanation is that the contract of _mutuum_ is shown to be a sale.
Vulgate, 'mutuum date, nihil inde sperantes' -- 'lend hoping for nothing thereby.'
As we have seen above, _mutuum_ was essentially a sale, and, therefore, no additional price could be charged because of some special individual advantage enjoyed by the buyer (or borrower).
All through the discussions on usury we find express recognition of the justice of the owner of money deriving an income from its employment; all that the teaching of usury was at pains to define was who the person was to whom money, which was the subject matter of a _mutuum_, belonged.
In this case, of course, the transaction would not be a _mutuum_, but
This dispute was decided in favour of the borrower on the ground that, according to the true nature of the contract of _mutuum_, the money was his property.
'Regarded as an extrinsic title, risk of losing the principal is connected with the contract of _mutuum_, and entitles the lender to some compensation for running the risk of losing his capital in order to oblige a possibly insolvent debtor.
(Apologie des Apuleius, p. 103) as _quod mutuum affectum provocat_.
On the other hand, the Roman and Greek laws, while considering the mutuum, or loan for consumption, as a contract gratuitous in principle, allowed a clause, stipulating for the payment of interest, to be added to the bond.
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