VIII. On Commodatum

What is commodatum? - Commodatum is: the gratuitous concession of some thing for use alone, and for a determined use, and for a certain time. C. I. 1805; C. G. 1875; C. H. 1740; C. L. 1506, 1507; C. A. 971; C. B. 598. - Of some thing, i.e., both immovable and movable, which nevertheless is not consumable by use. C. I. 1805; C. G. 1878. For use alone; and by this it differs from pledge or deposit, whose use is by no means conceded: for use alone, and that determined, wherefore precisely a right to a certain use only is transferred to the borrower, and consequently the lender remains owner of the lent thing. C. I. 1805; C. G. 1877; C. H. 1741. - And for a certain time; in this commodatum differs from precarium, because in precarium the time is not determined as in commodatum: wherefore precarium is defined as that which is conceded for use to one asking by prayers, as long as he who conceded it permits. C. H. 1750; C. A. 974; C. Precarium 3 de Precariis; Troplong della Prescrizione c. 2 del Possesso n. 365, 366. Concession; for a promise of commodatum, although obligatory, is not yet commodatum, which is a real contract and is perfected only when the thing has been handed over. C. A. 971.

Gratuitous concession; for by this commodatum differs from lease, because in the latter use is conceded for a certain price, but in commodatum gratuitously. C. I. 1806; C. G. 1876; C. H. 1740; C. L. 1507, 1508; Inst. 1. 3. t. 15. § 2; L. 744, 745; Lugo d. 33. n. 8.

What are the obligations of the borrower? - 1. It is illicit for the borrower to use things lent for a longer time or in another way than he received them to be used, if he understands that he is doing this against the owner's will, and that the owner, if he had understood it, would not have permitted it. Acting otherwise, he would not use the thing, but abuse it, and accordingly would be liable for damages. C. I. 1808, 1809; C. G. 1880, 1881; C. H. 1744; C. L. 1510, 1511; C. A. 972, 973; C. B. 602, 603. Cf. Ithur. Cas. 46. n. 6. 2. The borrower is bound to ordinary expenses for preservation of the thing, but by no means to extraordinary ones. The reason is that ordinary expenses are as it were a certain natural consequence of daily use, which has been conceded to the borrower, but extraordinary expenses are by no means so, since they are precisely for conserving the thing itself; and ownership of the thing remains with the lender. C. I. 1813, 1817; C. G. 1886, 1890; C. H. 1743; C. A. 981; C. L. 1519; C. B. 601; L. 18 In rebus § 2 Dig. h.t.; Lugo d. 33. n. 14; L. 747.

3. The borrower regularly is not liable for a fortuitous loss of the thing. C. I. 1810; C. G. 1882; C. H. 1744; C. A. 978, 979; C. L. 1516; L. 5 Si ut certo §§ 3, 4 Dig. h.t.; namely, his fault, a special agreement on this matter, and the sentence of a judge being excluded. The reason is that a thing perishes for its owner. Exod. 22:10. Likewise he is not liable for loss when this follows, not indeed fortuitously, but as it were necessarily, from the conceded use of the thing. For the owner is judged to have consented to that. C. I. 1812; C. G. 1884; C. H. 1746; C. L. 1516; L. 23 Si commodavero Dig. h.t.; L. Eum qui Dig. e.t. If the damage was done by the injury of another, the borrower is not liable for it. L. 19 Ad eos Dig. h.t. Nor is the borrower liable for loss if the thing perishes by the fault of him to whom the lender had ordered it to be handed over. L. 12 Si mei § 1 Dig. h.t. - Nor is he liable if the borrower used suitable means for restoring it. L. 20 Argentum Dig. h.t.; L. 752. 4. But the borrower is liable for fortuitous loss: if this has been brought into the pact, L. Ea quidem C. de Commodato, which is understood if he received the thing appraised, C. I. 1811; C. G. 1883; C. H. 1745; if fault of the borrower intervened, R. 25 de R. I. in 6; L. Si ut certo § 7 Dig. h.t.; if he applied the thing to another use, or did not restore it at the determined time, C. I. 1809; C. G. 1881; C. H. 1744; C. L. 1518; C. A. 978, 979; if he did not diligently guard the thing and preserve it from dangers, C. I. 1808; C. G. 1880; C. H. 1744; C. A. 978, 979; L. cit. § 5; C. Cum gratia un. h.t. According to C. I. 1808, 1810; C. G. 1880, 1882, the borrower is bound to guard the thing lent as a good paterfamilias; whence also, if in danger he exposes the lent thing rather than his own, he is liable for its destruction and accident. Namely, since the contract is for his benefit only, natural equity requires that the borrower, in an equal cause, consult another's interest rather than his own. - C. L. 1514, 1516; Gousset 810. According to Roman Law, L. In rebus Dig. h.t.; L. Obligationes § 4 de Obligationibus et Actionibus, etc.; and according to Canon Law, C. un. de Commod., the borrower is liable for fault not only grave and slight, but even very slight; namely, he is liable for grave fault if someone lent for his own sake only; for slight fault if he lent for the sake of himself and of the borrower; for very slight fault if he lent for the sake of the borrower only. Cf. 1072. Precarium imposes obligation only from fraud and grave fault, because the other can revoke the thing at will. L. Quaesitum est § 3 Dig. de Precario.

If a thing has been lent to several persons together, each is liable in solidum. L. 4 § ult. h.t.; C. I. 1814; C. G. 1887; C. H. 1748; C. L. 1520. 5. "The restoration of a thing lent is not probably refused under pretext of debt." L. ult. C. de Commod.; C. A. 471. 6. The rights and obligations which are contracted by force of commodatum pass to the heirs of the lender and of the borrower. But if the commodatum was made only in view of the borrower, it by no means passes to his heirs. C. I. 1807; C. G. 1879; C. H. 1742; C. L. 1509. The reason is that if the commodatum was made exclusively by reason of the person, its final cause ceases adequately, e.g., if you lent a horse to your friend, who was very much delighted by riding. If, on the contrary, the commodatum was made by reason of some particular thing, its final cause does not cease unless the thing ceases, e.g., if you lent a horse to your friend for the labors of harvest.

But precarium ceases by the death of the receiver, but not by the death of the giver, if it is not revoked by the heirs. L. Cum precario ff. de Prec.; C. fin. de Prec.; L. 745.

Whether, theological fault being excluded, laws of this kind oblige in conscience before the sentence of the judge? Theological fault: fault is one thing theological, another merely juridical. Theological fault is an omission or action, harmful to another, free, and which before God is sin. But juridical or civil fault is any negligence, or even an action harmful to another, even if involuntary and by no means sin before God. But such juridical fault according to Roman Law is threefold: namely grave, slight, and very slight. Grave fault, which is equated with fraud, is the omission of diligence and circumspection which men of the same condition commonly tend to use in the same circumstances of the matter: such as, e.g., if someone should leave a borrowed book outside before the door, and so a thief should take it away. It is equated with fraud, namely by presumption of law. L. 213, 223, 226 de Verb. signif. ff. - Slight fault is the omission of diligence and circumspection which the more diligent and cautious men of a condition of this sort are accustomed to use; such as if someone should leave a borrowed book inside a room, but with the door open; for the more diligent are accustomed to close the door. Finally, very slight fault is the omission of diligence and circumspection which the most diligent and most cautious men of such a condition use: such as if someone should leave a book lent to him inside a room whose door he indeed closed but did not test whether it was well locked. - L. 549, 749.

Although this distinction of faults is not expressly mentioned in C. I., C. G., C. A., C. H., C. B., nevertheless it is supposed when, for the diverse circumstances of the matter, those Codes require ordinary or extraordinary, lesser or greater diligence. Cf. C. I. 1151 ff., 1224, 1843, 1844; C. G. 1137, 1382 ff., 1927, 1928; Rogron on a. 1137; C. A. 1293 ff., 1306, 1323, 1324, 1331, 1332; C. H. 1902 ff. - In more recent law, the diligence which is generally required is that which the nature of the obligation requires, corresponding to the circumstances of persons, time, and place. Unless something else is expressed, that diligence is required which must be furnished by a good paterfamilias. C. I. 1224; C. G. 1137; C. H. 1104. - Cf. C. B. 276 ff., 300, 539, 599, 680, etc., 831 ff.; Troplong della Vendita c. 4, a. 1624, n. 361 ff.

Now the more common and more probable opinion affirms the obligation of the aforesaid laws in the forum of conscience. For 1., as Lugo says, d. 8. n. 106: "It cannot be denied that according to the light of nature and the common sense of men, men seem to be obliged more to guard against fault in some contracts than in others: for he who has received a thing lent for his own convenience alone judges himself more obliged to guard it than he who, for the utility of the depositor alone, has it deposited with himself. Therefore it cannot be said that in the forum of conscience all are held only for grave and serious theological fault; otherwise they would not be held more in one case than in another. Therefore that distinction of contracts, whether for the favor of one or of both, even with positive and human law excluded, produces diverse grades of obligations; and consequently in some case and for some fault someone will be held from one contract even in the forum of conscience, for which in another case he was not held; and therefore he will not be held only for mortal fault, but also for slight fault, for all in every case are held for mortal and grave fault." 2. "The reason is," as Lessius says, 1. 2. c. 7. n. 45, "because these laws sanction that which is consonant with natural equity to furnish concerning another's thing, which by means of a contract we have with ourselves; with this sanction posited, he who makes such a contract, by accepting a commodatum, lease, deposit, pledge, etc., implicitly obliges himself to furnish that diligence which the laws require. Wherefore, if he does not furnish this diligence, although this was done by natural forgetfulness without any fault, he will be bound to restitution." "But Soto, etc., very probably deny. The reason is that, on the one hand, it is not equitable to oblige someone to a grave penalty without his grave fault; on the other, it is not presumed, at least it is not established, that someone wished to oblige himself in conscience to satisfy a loss done with only juridical fault. But the laws which are adduced to the contrary, obliging with only juridical fault, either presume theological fault, or oblige only for the external forum, or have not been received in another sense.... But those laws which in some cases prescribe restitution, these indeed oblige, even if sin is absent, but not before the sentence of the judge, as the Salmanticenses, etc., commonly say, whatever others say.... Likewise in offices it is probable for the same reason that no one is bound to restitution except from grave fault joined with serious theological fault.... Nevertheless he who receives a stipend is held even from slight juridical fault ... or he who promises diligence greater than common due diligence, or if the office of itself requires great diligence.... But it is always understood that juridical fault is joined with grave sin, so that it may oblige gravely." L. 554. Moreover no one furnishes very slight fault; for, except in the case of a special contract and obligation concerning it, the most exact diligence is required neither by civil law, which in reality requires only moderate and ordinary diligence, nor by natural law; for ordinarily no one uses it in his own things, much less in another's, and the thing is altogether extraordinary and unusual. - But one must deal more mildly with him who gratuitously and for another's convenience furnishes an office, e.g., in the case of deposit; and therefore the doctors require grave fault in him, while on the contrary they teach that very slight fault must be furnished by him who contracts only for his own convenience, as in commodatum, and they say that slight fault must be furnished when the contract yields to the convenience of both, as in sale, purchase, lease, pledge, and partnership.

Whether someone is bound to save from danger things lent to him before his own things? - Resp. Affirmatively, if the things of another are much more precious than his own, especially if they were lent to him gratuitously. The reason is that the keeping which each prudent person would use for his own things is owed to another's thing; but each person would preserve his more precious things before cheaper ones.

Therefore he ought to act similarly toward another's lent things; otherwise he becomes guilty of injustice and is bound to restitution. But the other is bound to compensate the loss of the borrower's thing. For neither a borrower nor even a depositary is bound to extraordinary expenses for a thing lent or gratuitously deposited. C. I. 1817; C. G. 1890. - Hence, on the contrary, by parity of reason, one can per se prefer his own things if they are more precious than another's.

For no one is bound to undergo a greater loss in order to avert another's lesser loss. - In the case in which both the things of another and one's own are of the same value, it is disputed. Some judge that the borrower in this hypothesis must attend equally to saving the things lent and his own, because, by accepting them, he took on the obligation of using serious diligence in caring for and guarding those things as his own. Others, however, more commonly say that the borrower can probably rather save his own things from danger, because rightly ordered charity begins from oneself, at least speaking per se, with a special contract excluded. But if someone rather preserves the thing of another, the other is bound to compensate the loss of that thing; since it would be, in the case, to make an extraordinary expense. C. I. 1817; C. G. 1890. And these things, natural law being considered. As regards positive law, cf. 1071. Lugo d. 8. s. 10; L. 752; Ithur. Cas. 27. n. 14.

What are the obligations of the lender? - 1. The lender is bound to disclose the defects of the thing; otherwise he is liable for damages. For he is their cause to the borrower. C. I. 1818; C. G. 1891; C. H. 1752; C. B. 599, 600; C. L. 1521; L. In Commodato § 3 Dig. h.t.; L. In rebus § 3 Dig. e.t. 2. The lender cannot demand back his thing before the established time, or before the constituted use. For we ought to be assisted, not deceived, by a benefit. C. I. 1815; C. G. 1888; C. A. 973; C. B. 604; L. In Commodato § 3 Dig. h.t.; C. un. de Commod.; R. 33 de R. I. in 6. - Exception: unless equal damage threatens the lender; since this condition is always understood: unless necessity urges. For it is not equitable to benefit another by one's own damage. L. 747; C. I. 1816; C. G. 1889; C. H. 1749; C. L. 1513; C. B. 605. It is otherwise, however, according to C. A. 976. 3. He is bound to restore extraordinary and urgent expenses which the borrower had to sustain for necessarily preserving the lent thing, unless he is at fault. C. I. 1817; C. H. 1751; C. G. 1890; C. A. 981; C. L. 1521; C. B. 601, 606.