Bracton: Thorne Edition: English. Volume 2, Page 284

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Volume 2, Page 284

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[001] all of which are termed the vestments of pacts. ¹An obligation is contracted by a
[002] thing, as by the giving of a mutuum, a loan for consumption, which consists of
[003] things reckoned by weight, number or measure. By weight, as in things which are
[004] weighed, ²copper, silver or gold;³ in number, as in coined money; in measure, as in
[005] wine, oil or grain. Such things, [ascertained] by weighing, counting or measuring,
[006] are given so that they at once become the property of those who take them, for
[007] that is properly termed a mutuum which, being meum becomes tuum, and whenever
[008] not the very things but others of the same kind are returned to the creditor,⁶ ⁵or
[009] their value if they are consumed or lost by fire, earthquake or shipwreck, or stolen or
[010] carried away by thieves or enemies.⁸ ⁷He to whom a thing is given for use is also bound
[011] by the thing lent him. But there is a great difference between a loan for consumption
[012] and a loan for use, for he who has taken a loan for use is bound to restore the very
[013] thing, and, [though] he is not excused if he shows as much care in its safekeeping as he
[014] ordinarily bestows on his own goods if another could have safeguarded the thing with
[015] greater care, is not held liable for force majeure or accidents unless there has been
[016] culpa, as where he takes on a journey a thing lent him for use at home and loses it
[017] in an attack of enemies or thieves or by shipwreck; he is then clearly liable.
[018] A thing lent for use is said to be given ad commodum, as an accommodation, and is
[019] properly understood to be lent when it is given without recompense. For a loan
[020] for use ought to be gratuitous and if payment is involved the transaction ought
[021] rather to be called a letting and hiring than a loan.¹⁰ ⁹He with whom a thing is
[022] deposited is [also] bound re and held to the restoration of the very object he accepted,
[023] [or its value if it is lost and] he has committed some wrongful act. For
[024] culpa, that is, carelessness or negligence, he is not liable, for he who entrusts a
[025] thing to the care of a negligent friend can only blame himself and his own lack of
[026] caution.¹² ¹¹A creditor who takes a pledge is [also] bound re and is bound to restore
[027] the thing. [But] since a pledge is given for the benefit of both parties, that the
[028] money may more readily be entrusted to the debtor and be lent with more safety
[029] by the creditor, it is enough if the pledgee exercises the greatest care in safeguarding
[030] it. If he shows that but loses the pledge by accident he may be free of liability,
[031] nor will he be barred from suing for his loan.¹⁵ ¹³An obligation is [also] contracted
[032] by words, by a stipulation. A stipulation is a certain form of words¹⁴ which consists

Notes

1. Br. and Azo, 144-7

1-4. Inst. 3.14, pr.

2-3. ‘aere, argento et auro,’ from line 4, as Schulz in L.Q.R. lix, 173

5-6. ‘vel ... ablata,’ from lines 10-12; cf. G’terbock, 141, n.; Bracton and Azo, 146-7; Plucknett, Concise History (5th ed.) 476-7; Genzmer in Conferenze Romanistiche (Trieste Univ., Istituto di dir. rom., 1960) 140, n. 37. Other discussions are noted in Kantorowicz, 94-7. Fleta (ii, ca. 56) as Br. text

7-8. Inst. 3.14.2

9-10. Inst. 3.14.3

11-12. Inst. 3.14.4

13. Br. and Azo, 147-50

13-15. Inst. 3.15 pr., 1-2; the second method of contracting an obligation

14. Azo, Summa Cod. 8. 37, no. 1