... Disputationis ad titulum Dig. si cert. pet. iuridicae periculum sub praesidio Iacobi Brandmylleri ... subibit horis locoque solennibus ad diem ... mens. Octob. ann. 1654 Michael Tremuleus Genevensis

we [provide], on this condition: that not the same thing, but another of the same nature and quality be returned to us at some time.

IV.

From this definition, many and arduous controversies present themselves to us, the first of which is: whether mutuum (a loan for consumption) is a proper, true, and named contract? The reason for doubting is no greater than if we were to inquire whether this contract is of the law of nations (jurisgentium).

V.

Or if we were to inquire whether it is a real contract (contractus realis)? For it is perfected by the delivery of the thing, not by mere consent (nudo consensu); otherwise, no action could arise from it. Nor can any consent suffice for an action, whether it be fuller, which belongs to contracts, or less full, which belongs to a naked pact (nudi pacti), to whose effect we attribute no action.

VI.

Because of this necessary intervention of the thing, if I should give you ten and agree that you return eleven to me, you are not obligated beyond the ten.

VII.

Therefore, we also assert that this contract is of strict law (stricti juris).

VIII.

However, although this contract derives its substance from the thing, lest one oppose to the thing the consent which either creates or accompanies every contract: only those contract a loan who are able to consent, and who have the free administration of their own affairs.

IX.

Such are not wards (pupilli), the demented (dementes), the insane (furiosi), or spendthrifts (prodigi), who are equated with the insane.

X.

Nor does it contradict this, that a ward, a demented person, an insane person, or a spendthrift—