73. On Commodatum, on Deposit, on Mandate

1. Fuscianus lent to Rutilius tapestries, or textile pictures, for adorning the rooms of the house, silver candlesticks, golden vessels, and other precious furnishings, on the occasion of a wedding banquet and feast. When it had ended, at night, from a cause altogether unknown, the whole house is burned, and all things perish. Scarcely did Rutilius and some of his family have time to save their own life.

Q. Is Rutilius held for the damage of the things lent to him?

R. Negatively. For, on the one hand, a thing perishes for its owner; but on the other hand, since the cause of the fire is altogether unknown, it can in no way be established whether there was theological fault, or even juridical fault; and therefore he cannot be held for the damage. The same would have to be said if the things lent had been taken away by theft, no fault of Fuscianus intervening [printed thus; the sense requires Rutilius].

But what if there were doubt concerning negligence? Neither in this case of doubt could Rutilius be obligated to compensate the damages, because then the obligation, if there is one, is doubtful and consequently also uncertain. But one cannot be obligated to certain compensation of damages on account of a mere doubt about damage having been brought about.

But what if there had indeed been negligence, but not theologically culpable, as it is not rare to happen in fires of this sort? It seems then that Rutilius is held to the compensation of damages in the case. Thus indeed from civil law and in the external forum; and the same seems to have to be said in the internal forum, on account at least of an implicit contract concerning diligence to be applied, indeed also concerning not ordinary and common diligence only to be applied; since the question is of a loan for use in favor of the borrower only, and of very precious things, and in notable quantity. But when the sentence of the judge has intervened, there is no doubt that Rutilius, in this same hypothesis, is held to compensate the damages. - I. M. 1070 seqq.; G. 869 seqq., 877.

2. Pibertus, a merchant, under an express promise of secrecy accepted, manifested to his friend Gedonius the intention which he himself had of declaring a cession of goods to his creditors. Wishing, however, to withdraw 500,000 lire, he asked the same Gedonius that he secretly keep with himself that sum of money deposited with him, and restore it to him after a composition had been made with the creditors. Then he added that the aforesaid money was partly silver and gold coins, partly titles of the public Debt, among which, he says, there are 100,000 lire in Russian titles, which I most recently received from the Russian gentleman Photius Telletoff, well known to all in the whole city.

Q. What as to the case?

R. Gedonius could in no way accept the aforesaid secret. And although he has accepted it, he is in no way held to keep it. For the matter concerns an illicit thing, a thing gravely harmful to others, a detriment to be brought about by the very one committing the secret, a secret employed for accomplishing by deed the aforesaid damage. - I. M. 1542, 1543.

Moreover, Gedonius can in no way accept the aforesaid deposit. Otherwise he becomes an unjust and efficacious damager, by cooperating in the damage of the creditors, and he is held to restitution. But if he has already accepted the deposit, and the cession of goods has already been made, he cannot restore it to Pibertus, but it must be restored to the creditors of Pibertus; and therefore, that this restitution may be made rightly, creditors of this sort must be admonished, or rather the legitimate authority must be admonished, lest in this restitution, as can easily happen, some injure others. - But if, again, he has already accepted the deposit, but the cession of goods has not yet been made, he ought to admonish Pibertus concerning his injustice, that he abstain from it altogether. But if Pibertus is altogether determined to make the cession of goods, the creditors must be admonished, that they may beware for themselves, or better, at an opportune time, the legitimate authority must be forewarned; and the deposit received must be consigned either to the creditors, or certainly, practically speaking, to the legitimate authority, that it may be restored among the creditors. But if it is certainly established, as it seems, that those Russian titles were given individually by the Russian gentleman Telletoff, they must be restored to him. But due precautions must be employed in this restitution, if it is made without the intervention of legitimate authority, lest damages thence come upon Gedonius himself. I. M. 1075, 1076, 1423. - Gennari Consult., etc. p. 1, cons. 48.

3. Canutus, treasurer of a certain prince, with monies entrusted to himself, the owner not knowing, trades for his own advantage in the money market, and makes for himself a sufficiently notable profit. One day, when a small chest filled with the money of the lord had been handed to him, instead of immediately putting it back in the money chest which was kept in the same house of the prince, he carried it away to his own house, that he might be able to trade also with that, as he was accustomed to do. But after a few days, inspecting the small chest and counting the money, he noticed that one thousand lire had been withdrawn from it.

Q. What as to the case?

R. Canutus in the case does not seem able to be excused from sin, and from grave sin, on account of the use which he makes of the money of his lord. For the prince is certainly unwilling, and reasonably unwilling; and there is no doubt that, if the prince knew the infidelity of his treasurer, he would immediately expel him. Canutus, by trading with the money of his lord, certainly exposes it to great danger, since the aforesaid trading of money in the money market, or exchange, is in itself a very dangerous thing, as daily experience itself establishes.

Nevertheless, since the matter has hitherto succeeded well for Canutus, he can keep for himself the sufficiently notable profit which he has received from that trading, because they are the fruits of his industry. But it is supposed, as appears from the case, that that money was to be stored in the chest and to remain there idle, so that from that money, employed for trading, no ceasing profit of the prince follows.

But Canutus is held to restore the one thousand lire withdrawn from the small chest. For by carrying the money away into his own house, that he might be able to trade with that money, he took upon himself the risk of the same. - I. M. 1075 seqq.; G. 882-884; Ithur. cas. 2. n. 12, 13.

4. Durandus deposits with Martinus, a public money-changer, a sum of counted gold money, 50,000 lire. Durandus likewise deposits with the same Martinus 50,000 lire in 50 schedules of the public Debt. A writing is made by the money-changer of the deposit handed over, namely, of gold money of 50,000 lire and 50,000 lire of the public Debt, without the serial numbers of the aforesaid schedules being indicated. The deposit having thus been completed, after five months one of those schedules obtains a prize. But after a year had passed, Durandus demands back from Martinus the deposited money together with legal interest and the prize obtained. Martinus restores only 50,000 lire in gold money, and 50,000 lire in 50 schedules of the same public Debt.

Q. Did Martinus act justly?

R. Affirmatively. For first, the depositary is not held to pay any interest on deposited money, except from the day on which he is constituted in delay. Thus C. I. 1852. Wherefore it altogether suffices that Martinus restore the money received, in that species in which it was received, whether it has increased or decreased, nor does he owe any interest for it. Moreover, since the schedules of the public Debt were deposited only as to species, number, and value, and in the deposit no account was taken of the serial number of the same schedules, those schedules by that very fact passed into the ownership of the money-changer, so that, if they had been carried off by theft or burned by fire, he himself certainly would have had to substitute others for them. Therefore the prize of that schedule belongs not to Durandus, but to Martinus, to whom the schedule itself belongs. Scav. l. 2. num. 458.

5. Ludovicus receives from Aloisius a ring, with a precious gem, to be sold for 100 lire. He immediately finds Diogenes, who buys it for 130 lire. Rejoicing at such good fortune, Ludovicus hands 100 lire to Aloisius, but keeps 30 lire for himself.

Q. Did Ludovicus act rightly?

R. If Aloisius agreed with Ludovicus that he should sell the ring for 100 lire to be handed over to him, and that, if he should receive anything beyond that, he should keep it for himself, Ludovicus can indeed keep the 30 lire for himself. Apart from such an express or tacit agreement, Ludovicus must return the whole price to Aloisius. For then he cannot keep that excess for himself by reason of the thing sold, which belongs to Aloisius, and therefore its price also belongs to the same Aloisius. Nor can he keep the aforesaid excess by reason of the designation of the price made, because that designation, of itself, apart from another pact of retaining the increase, has only this force, namely, that the thing not be sold below a price of this sort, but by no means that it not be sold for a greater price, if this is possible. Nor indeed can he retain those 30 lire by reason of industry. For first, as appears from the case, there was no special industry of Ludovicus in that sale. Moreover, generally the increase of the price of a thing pertains of itself to the very price of the thing, because a thing which is worth 100 and is sold for 100 can also be worth 110, 120, 130, and be sold for this greater price. For the price of a thing, especially of some things, is not indivisible, and from many circumstances it can be increased as well as diminished.

If Ludovicus agreed with Aloisius about some wage to be received, this indeed is owed to him, namely that which was determined by pact, and which no longer depends on the judgment of the mandatary. But if no agreement was made about a wage to be received, then Ludovicus is judged to have wished to perform his office gratuitously. Nevertheless Ludovicus deserves some reward for a matter so usefully managed. And if he had not immediately found a buyer, but had had to apply notable time and undertake extraordinary labor to sell the ring, then, in a manner proportioned to the labor, he could have compensated himself. I. M. 1112 seqq., 1170; G. 563, 887, 888.

6. Maximinus orders the maidservant Claudia to buy necessary goods from Marcus. Since Marcus sells only inferior things and at a dearer price, Claudia buys the goods from other merchants at hand, of better quality and at a lower price. Sometimes, moreover, to buy the things at a still lower price, she goes to the public market, where she can also choose what things are better. Claudia would like to keep something at least for herself, and therefore she asks her confessor.

Q. What as to the case?

R. 1. Apart from a special pact between Maximinus and Marcus, Claudia, passing over Marcus and managing a matter very useful to her lord, violates no right of Marcus, and therefore is held to nothing toward him.

2. But the money which she gains by buying from other merchants she is held to return to her lord; for she herself buys the goods in the name of her master, wherefore the remaining money belongs to the master. Moreover, by reason of her office and of the stipend which she herself receives, she is held to procure the utility of her lord. Nor indeed is there any special industry or labor in this, that she herself buys goods from other merchants at hand. And the same must be said as to the profit received when she goes to the public market, unless, on account of the distance of the place and the untimely hour at which she must go there, there is special labor and fatigue on her part; and likewise some special industry in completing contracts with merchants of this sort, who sell things in greater quantity and at a lower price in the public market, which industry, that the matter may succeed well, certainly is not of all persons; especially since it can easily happen that the things are of inferior quality. Wherefore, if Claudia, by her labor and industry, buys goods in the public market in greater quantity and better quality, and at the same time at a cheaper price, so that Maximinus is altogether content, if she herself keeps something for herself, either of the greater quantity of goods bought, or of the reduced price, she does not seem to be disturbed. And if some scruple should still remain, if Maximinus, seeing the goods bought and considering their quantity and quality and price, shows himself altogether content, he now has ratified the manner of acting of Claudia. - I. M. 1170; G. 571, 572, 886.

7. Remigius buys for 50 lire a gem worth 200 lire, knowing that it is stolen and belongs to Germanus, that he may perform for him a matter very useful and pleasing. Otherwise Germanus would have lost the gem entirely. But Germanus indeed claims the gem for himself, yet refuses to refund to Remigius the price paid.

Q. What as to the case?

R. Germanus acts unjustly, in not wishing to refund the price to Remigius. For Remigius in the case truly undertook to manage his business usefully. Wherefore, both by natural law and by positive law, he is held to compensate the price paid. But since Remigius has a strict right to compensation, he can compensate himself from that very gem, by retaining it for himself, or by selling it, and by giving the excess of the price to Germanus. - I. M. 1118, 1119; G. 889, 890.

8. Raphäel bought a watch from Michäel for the price of 100 lire, which he gave to him, the watch having been received. Michäel forgot to note in his book the price received; hence after two years, reading through the book of sales, and seeing that the price of the watch had not yet been paid, he asks it from Raphäel. Raphäel affirms that he has already paid the price, and that at home he still keeps the schedule signed by Michäel himself of the price received. But when Raphäel could not find that schedule, and Michäel believed his own book rather than Raphäel, he brought the matter to the judge. In judgment Raphäel is condemned to pay the price and the expenses of the judgment itself. Raphäel patiently pays everything. But after ten years, while he was burning his useless papers, he found among them the lost schedule. He immediately showed it to Michäel; but Michäel opposes prescription to him. Then Raphäel consults an advocate, who responds that in the case he will obtain nothing from the judge. Then Raphäel, by occult compensation, renders himself indemnified both as to the price paid twice and as to the expenses of the litigation.

Q. 1. What contracts are had in the case? - 2. What concerning the sentence of the judge? - 3. What concerning Michäel? - 4. What concerning Raphäel?

R. To the 1st. Two contracts are had in the case: namely, the contract of buying and selling, and besides this the quasi-contract of the payment of what was not owed. I. M. 1124.

To the 2nd. The sentence of the judge indeed was just. For, the proof of payment failing, and the proof of payment owed and not yet satisfied standing, Raphäel is condemned by the judge rightly and deservedly. C. I. 1312.

To the 3rd. There is indeed difficulty in the prescription opposed by Michäel. From Roman Law the prescription of movables with title is made in three years, nor is the payment of what was not owed excluded from prescription; indeed this is also explicitly commemorated. Dig. lib. 41. tit. 10. L. 3. But this prescription is not had in the Italian Civil Code as to the action of reclaiming what was unduly paid. Nor likewise can prescription be had in the Italian Civil Code from the fact that the matter concerns a movable thing, namely money, for which possession in good faith and with title suffices, as is verified in the case. For whatever may be true of the French Civil Code, from which that disposition of law was taken, from the Italian Code prescription is had only as to third parties, but by no means as to those very persons between whom the contract or quasi-contract intervened. Whence it would seem that one must say that Michäel could not oppose prescription.

To the 4th. If prescription has not been completed by Michäel, as is established from what has been said, it follows that Raphäel can use occult compensation for the price unduly paid twice; but not for the expenses of the litigation. For in that litigation there was no injury on the part of Michäel, who proceeded in that litigation altogether in good faith, and also altogether justly according to the law.