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BOOK TWELVEICLAIMS A N D T H E CONDICTIO BOOK TWELVE 1 THINGS CREDITED GIVING RISE TO FIXED CLAIMS AND THE CONDICTIO 1 ULPIAN, Edict, book 26: Before we get to the interpretation of the edict's words, something ought to be said of the meaning of the rubric itself. 1. I t was because he wanted to include a good deal of law relating to differing contracts that the praetor chose the rubric "things credited," because that embraces all contracts entered in reliance on the faith of another. For, as Celsus says in the first book of his Questions, "credit" is a general term. Hence, the praetor put the edicts on both loan for use and pledge under this rubric. In fact, whenever we agree to something in reliance on the faith of another on the basis that we shall soon receive back something in return, we are said to give credit under the contract in question. The word "thing" was also chosen by the praetor for its generality. 2 PAUL,Edict, book 28: In the case of loan for consumption, we do not expect to get back the very thing given (then it would be loan for use or deposit) but rather something of the same kind. If ever we expect back something of another kind, as, for instance, wine for corn, the transaction will not be loan for consumption. 1. This kind of lending happens in relation to those things which are dealt in by weight, number, or measure. For the giving of those things makes us generic creditors, since the very way in which they are used requires generic rather than specific repayment. But in the case of other things, we cannot become generic creditors, for the reason that without the creditor's consent one thing cannot be given in discharge for another. 2. The word for loan for consumption, mutuum, is formed from meum and tuum, because what is mine becomes yours. Hence, if it does not become yours, the obligation does not arise. 3. Credit differs from loan for consumption as genus from species. There can be a credit of things other than those dealt in by weight, number, or measure. So, for instance, there is a credit when we expect back the very thing given. Again, there cannot be a loan for consumption unless value passes, whereas a credit sometimes happens even though nothing passes, as where after a marriage a dowry is promised . 4. The person giving a loan for consumption must be the owner; and that is not contradicted by the fact that sons-in-power and slaves raise the obligation by lending coins from their peculium; for that is the same kind of case as where you give money at my behest; then the action accrues to me, though the coins were not mine. 5. We also become creditors by word of mouth by using a form which creates obligations, as, for instance, stipulation. 3 POMPONIUS, Sabinus, book 27: Even if there is no provision in a loan for consumption that the thing returned should be of the same quality, the debtor is not allowed to give back some thing which, though of the same kind, is of inferior quality, for example, new wine for old. The reason is that when a contract is made, the nature of the transaction is given effect just as though expressly provided for; and the nature of this one is taken to be tliat the thing paid back must be of the same kind and quality as the thing given. 4 ULPIAN,Sabinus, book 34: Suppose a man who has no reason or plan to put money out at interest. You are going to buy an estate. You ask for money by way of loan for consumption 358 BOOK T W E L V E / C L A I M S A N D THE CONDICTIO but you do not want to take the money as credited to you until you make the purchase. The creditor, perhaps because he has to set off on a journey, therefore deposits the money with you on the basis that only if you buy, do you come under an obligation as for money credited to you. Now, you take that deposit at your own risk. For one who receives something to be sold with the term that he may himself use the price also holds the thing at his own risk. 1. A thing which has been given...

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