罗马法上要物合同范畴的厘定:渊源与启示

罗马法学家对要物合同范畴的提炼一方面是以消费借贷为基础的,另一方面是以该范畴与其他合同范畴的不同为依据的。这两个参考因素带给我们这样的理论认知,要物合同的硬核为协议加给托付物。协议是其目的性要素,给是其产生根据,托付物是其产生背景。正因此,其典型类型是消费借贷、使用借贷、寄托与质押,无名合同不是真正的要物合同。在界定要物合同时,认为以完成其他给付为成立要件的合同也是要物合同是反历史的。

Definition of the Category of the Real Contract in Roman Laws:Origin and Inspiration

The definition of the category of the real contract by roman jurists is based on the contract of lending for consumption that is the mutuum,as well as the difference between such basis and other contract categories. The theoretical conception drawn from these two factors is that the core of real contract is an agree-ment and delivery of the res credita in which the agreement acts as the purpose,“delivery”accounts for oc-currence,and the“res credita”is the context of occurrence. Therefore,typical real contracts are mutuum, commodatum,depositum and pignus,while the innominate contracts are not real conracts actually. To define the real contract,it is anti-historic to consider contracts in which the constitutive elements including the ful-fillment of other delivery as real contracts.