Loan of consumption in Roman Law (Mutuum)

The Roman term for the loan for consumption was mutuum. The remarkable effects of mutuum and Roman Law can be seen on the regulations of modern legal systems. Mutuum was a real contract, i. e. the transfer of the money or the other fungibles was necessary in order to create the obligation to return an equal sum. In modern Turkish law loan for consumption is a consensual contract, i. e. nothing more is necessary for its formation than the agreement, no matter how expressed, of the parties. The definition of loan for consumption comes from the Roman law. The loan for consumption is a unilateral contract as a rule, and this feature of the contract takes its roots from the ancient mutuum. Loan for consumption is still a real contract in some countries like France, Italy and Holland, on the other hand it is a consensual contract in Turkey, Switzerland, Germany and Austria. To examine the historical development of mutuum will be helpful to understand these different regulations in different countries. The study consists of four parts. In the first part the concept of mutuum, the origin of this concept, the different views about the emergence of this contract and the much disputed nexum have been approached. In the second part the elements of mutuum, the position of mutuum in the Roman contractual system, the features and the purpose of mutuum have been discussed. The special types of mutuum have been treated in the third part. In the fourth and the last part the different legal remedies for mutuum have been covered. Keywords: Mutuum, Nexum, Loan for Consumption, Real Contract, Condictio