[PAULUS libro uicensimo octauo ad edictum. ] §12.1.2.prMutuum damus recepturi non eandem speciem quam dedimus (alioquin commodatum erit aut depositum), sed idem genus: nam si aliud genus, ueluti ut pro tritico uinum recipiamus, non erit mutuum.
[PAUL, On the Edict, book 28] We give a loan for consumption intending to receive back not the selfsame individual item that we gave (otherwise it will be a loan for use or a deposit), but the same kind; for if it is another kind, as for instance if we receive wine instead of wheat, it will not be a loan for consumption.
§12.1.2.1Mutui datio consistit in his rebus, quae pondere numero mensura consistunt, quoniam eorum datione possumus in creditum ire, quia in genere suo functionem recipiunt per solutionem quam specie: nam in ceteris rebus ideo in creditum ire non possumus, quia aliud pro alio inuito creditori solui non potest.
The giving of a loan for consumption consists in those things which are determined by weight, number, or measure, since by the giving of them we can enter into a credit transaction, because by payment they admit of performance in their kind rather than in their specific identity; for in other things we cannot enter into credit for this reason, that one thing cannot be paid instead of another to an unwilling creditor.
§12.1.2.2Appellata est autem mutui datio ab eo, quod de meo tuum fit: et ideo, si non fiat tuum, non nascitur obligatio.
Now, the giving of a loan for consumption is named from this, that what is mine becomes yours; and therefore, if it does not become yours, no obligation arises.
§12.1.2.3Creditum ergo a mutuo differt qua genus a specie: nam creditum consistit extra eas res, quae pondere numero mensura continentur sic, ut, si eandem rem recepturi sumus, creditum est.
Credit therefore differs from a loan for consumption as a genus from a species; for credit exists also outside of those things which are contained in weight, number, and measure, so that, if we are to receive back the selfsame thing, it is credit.
item mutuum non potest esse, nisi proficiscatur pecunia, creditum autem interdum etiam si nihil proficiscatur, ueluti si post nuptias dos promittatur.
Likewise, there cannot be a loan for consumption unless money actually passes, whereas credit sometimes exists even if nothing passes, as for instance if a dowry is promised after marriage.
§12.1.2.4In mutui datione oportet dominum esse dantem, nec obest, quod filius familias et seruus dantes peculiares nummos obligant: id enim tale est, quale si uoluntate mea tu des pecuniam: nam mihi actio adquiritur, licet mei nummi non fuerint.
In the giving of a loan for consumption, the giver must be the owner, and it is no obstacle that a son in power and a slave, by giving coins from their peculium, create an obligation; for this is just as if you were to give money by my will; for the action is acquired for me, even though the coins were not mine.
§12.1.2.5Uerbis quoque credimus quodam actu ad obligationem comparandam interposito, ueluti stipulatione.
We also give credit by words, a certain act being interposed to establish an obligation, as for instance by a stipulation.