A real contract in Roman law is an agreement at the conclusion of which one of the parties transferred a certain thing to the other. To some extent, this specific form of the contract was a guarantee - obligations did not arise until the property passed from side to side.
Unlike simple informal agreements, a real contract is not an abstract pact. The agreement takes effect if there is a certain reason, and provides for the obligation of a person to return property previously received by him from another person.
Collateral, luggage, loan, loan - these are all real contracts.
The most common was a loan. This agreement was a unilateral obligation. In accordance with it, a sum of money or a thing was transferred to one side, which, after a certain period of time, this party undertook to return. This obligation entered into legal force only from the moment of transfer of property after the agreement. Along with this, the agreement of the parties was an integral condition for the contract being drawn up (without an agreement there is no contract).
The loan involved the transfer of property into ownership from the lender to the debtor. This gave the latter the right, having become the owner of the transferred property, to dispose of it at his discretion.
The loan, as a real contract, provided for specific deadlines for the fulfillment of obligations. Along with this, the contract could be terminated at the first request of the creditor. As such, the loan did not imply interest on the amount transferred. However, this practice was quite common and represented a verbal agreement on interest. So, for example, in the Justinian era, the maximum interest on the loan was 6% per year. The interest calculation system was also applied in case of delay in the obligation.
The loan endowed the lender with greater legal force. At the same time, the borrower was actually dependent on the lender. Due to the fact that the first needed money, the second could dictate its terms. The loan system had some features. So, for example, the creditor could order the debtor to pay money to a third party. In this case, the latter becomes the debtor of the first.
A real contract involving a gratuitous transfer for temporary use from one person to another thing was called a loan. The main difference between this agreement and the loan was gratuitousness. In this case, the obligation was built on the friendly relations of the parties.
A loan is a bilateral real contract. Under the terms of this agreement, the lender had the right to recover costs associated with the improvement or maintenance of the property taken. This could be done by filing a counterclaim. Along with this, the person who transferred the thing (the lender) could demand the return of the property earlier than the time specified in the agreement.
Loan obligations terminated from the moment the borrower returned the property transferred to him.
An agreement on storage (luggage) was also considered a real contract in Roman law. This contract provided for a bilateral obligation. It implied the transfer of movable property for storage with the establishment of a term or demand. After the expiration of the period specified in the agreement, the thing was returned to the owner.
According to this agreement, the person receiving the deposit did not use property, but only kept it and ensured safety. As a rule, the subject of the agreement was an individually defined thing.
The storage agreement was based on friendly relations and was free of charge. However, with the help of the lawsuit, the person who accepted the property for storage could recover losses from the depositor if the latter caused the first loss, having deposited the “low-quality item”. Due to the gratuitousness of the agreement, the depositor was not responsible for insufficiently attentive storage of the thing. Along with this, he was obliged not to cause intentional damage and not to allow careless storage of property.