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The concept of mutuum cum stipulatione

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image of Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review

Roman documents of loan mostly follow the form of the so-called mutuum cum stipulatione. The informal loan contract (mutuum) is supplemented by a stipulatio in which the borrower faithfully promises the repayment of the loan. This combined contract was probably meant to include interest to the documented loan capital in a legally valid way. This was achieved by using a stipulatio which was structured in an abstract way. Unlike the mutuum abstract stipulations were valid whether the loan capital had been paid to the borrower or not. Actually, the archive of the Sulpicii suggests that in the documents mutuum and stipulatio existed independently of each other. Contrary to prevailing opinion, this combined model, probably representing the initial concept of mutuum cum stipulatione, was also supported by Roman jurisprudence, most likely by Ulpian. Consequently, the contractus re et verbis, which often led legal historians to assume interpolations, has to be regarded as a category of classical Roman law.


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