such circumstances when one friend borrows from another, sav a sack of seed corn, it is morally impossible for the lender to show distrust and demand a formal contract of stipidatio. Where a loan was commercial, the lender would take a stipuLitio to cover both the return of an equi\ alent of what was lent and interest; hence no contract of mutuum would arise. \\ hat was true for mutuum was equalh' true for deposit {depositum), loan for use {comrnodutum), and mandate [muiidutum). 'Then' all of necessit\’ had to he gratuitous. 'Fhe only perfecth' bilateral Roman contracts were sale {emptio vetiditid) and hire {locutio coiiductio), and they are the simplest possible bilateral contracts because the obligation on (ine side was only the payment of money. Still, such bilateral arrangements would have involved the complicated business of mutual and interlocking stipulutioucs. Too complicated, and frequentlv' giving rise to misunderstandings, hence the necessity of the new contracts of sale and hire. Still, other hilateral arrangements, such as ser\ ices for ser\ ices were too complicated for the Roman system, and for them no new contracts were inv ented. I wish to emphasize that other such bilateral arrangements were not too complicated for human imagination, hut were for the limitations of the legal system. A further Roman e.xample can he drawn fromloss caused by water from activ itv on a neighbor's land. At Rome, the law deriv ed from the 'rwelve 'Fables of the mid-fifth centurv' b.c. 'Fhe uctio aquaepluviacarcoidae{ Acxxow for warding off rain water) lay for increasing the flow of water on to a neighbor's land. It did not lie for diminishing the flow; vet a need for water for irrigation and for animals and humans would he vital. I'o the uninitiated, it is astounding that Roman law never developed protection against a diminution of the water supply ev en in the time of lustinian. In fact, the Roman approach was h(vrrovved hv the French, and it was only on the very eve of the 76
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