Francisci Hotomani iurisconsulti observationum liber IIII

"Mutuations" instead of "dations of loan": "Contention" instead of "Condition."

CHAPTER VI.

The contumelious dispute of my detractor does not move me at all from retaining my old opinion and restoring "Mutuations" Mutuationes borrowings in the words of the S.C. Velleianum Velleian Senate Decree, and restoring the place thus: "Regarding suretyships and mutuations by which they have interceded for others," etc., where it is vulgarly read faultily: "Dations of loan." For just as a woman is said to intercede not by lending, but by suretyship, or by taking over a debt, or by pledging, or by constituting, or by compromising, finally by taking an obligation upon herself: so she is said to intercede not by giving a loan, but by receiving a loan: not by stipulating, but by promising: finally not (as the vulgar speak) by active, but by passive obligation. Therefore, treating this kind of female intercession, Africanus explicitly uses the word "mutuating" in some places. Law "the wife to the husband" 17, in principle, and last section; and law "tutor" 19, section "when you had," Digest, on the Velleian decree; and in law 3, Code, on the same, a woman is said to interpose her credit, not for him who gives the loan, but for him who receives it. For instance, if while Titius was seeking a loan from me, because I had suspicions of his means, I preferred to trust his wife or mother. Finally, a woman intercedes not by giving a loan (as has already been said) but by mutuating: as law 4, law "a certain one" 29, Digest, on the Velleian decree. Not in a dissimilar kind is this other amendment, that instead of "CONDITION" we should replace "CONTENTION," in two places in the last law, Digest, on oaths, where it is read thus: "And it was agreed that one should depart from every condition, if the ward had sworn." Likewise: "It was acted between them that if he had sworn that he ought not to give, one should depart from every condition." For since an oath obtains the force of a judged matter, and so the adversary constitutes the adversary as judge of the controversy. We see it said everywhere, "Through an oath provided by agreement one departs from every contention": as law "if anyone had sworn" 43, Digest, on condition of indebtment; law "for the condemned" 18, Code, from what causes infamy; similarly that one departs from every controversy through an oath, in law "oath" 40, Digest, on oaths; law 1, section 2, Digest, on those things by which exceptions are made.

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