Chapter III. On Commodatum and Precarium

841. Commodatum is a contract by which a thing is granted gratis for use alone ¹ for a certain time, with the burden of restoring the same thing in its individuality ².

¹ Others, however, in defining commodatum say: "for the sake of a certain use," or, "with the end and mode of using prescribed," by which they also embrace the time, and therefore they do not think that it must always be expressly determined.

² The Author uses more the mode of philosophers than of jurists, when he says that a thing is to be restored in its individuality if it is loaned, but in the same species if it is lent by mutuum. For jurists express themselves otherwise, and say that in the first case the thing is restored in the same species, but in the latter in the same genus.

Precarium, closely related to commodatum, is a contract by which the use of some thing is granted to one who asks, revocable at the will of the grantor. It differs, therefore, from commodatum in this, that it is revocable at the discretion of the grantor.

Commodatum differs: 1. from lease, because in the latter also the use of a thing is given, but not gratis; 2. from deposit, because in deposit a thing is not delivered for use, but only for custody; 3. from mutuum, because in mutuum the thing is restored only in the same species.

The object of commodatum and precarium can be any things, whether movable or immovable, placed within civil commerce, provided they are not consumed in the first use to which they are destined.

842. In general, the borrower must use the loaned thing as a good father of a family. In particular:

1. He cannot use the thing except for the use for which it was granted, or for one to which he prudently judges the lender consents, or to which the thing is destined by its nature. Otherwise he abuses another's thing, and must make good the damages that have arisen.

2. He must bear the necessary expenses for the preservation of the thing, for example, to feed a borrowed horse; but not extraordinary expenses, for example, to cure the horse laboring under a grave illness, and this without his own fault.

3. He is bound to return the thing loaned at the appointed time, and indeed at his own expense, even if he is not asked; for the appointed day summons on behalf of the owner. If, however, no time has been fixed, it is to be returned as soon as the use for which it was granted has been completed.

4. If the thing loaned suffers detriment from the use granted, without the fault of the borrower, the borrower is not held to compensation for the damage. But if it has become worse by his juridical fault, he is held to compensation in the external forum, and, according to many theologians, also in the internal forum, since the contract is entered into for his utility alone. Others, however, probably deny this, unless some particular agreement has intervened ³.

³ Compare what has been said above, n. 661 and following, concerning the faults from which an obligation of restoring flows even in conscience.

843. 1. The lender is bound not to ask back the thing before the fixed time, or at least, if no time has been fixed, before the borrower has been able to use the thing. Otherwise he is held for the damage which arises from the untimely revocation, since he violates the right acquired by the pact. An exception is made if the loaned thing was in favor of the borrower alone, and the borrower dies before the fixed time; or if the lender himself has need of the thing, immediately and from an unforeseen event.

2. He is bound to restore extraordinary expenses, urgent and necessary for conserving the thing, which the borrower incurred when he could not easily warn the lender.

3. He is bound to disclose the harmful defects of the thing loaned, if he knows them; otherwise he must compensate the damage.

4. Finally, he must sustain the dangers and detriments arising from a fortuitous case, with delay, fault, pact, and a special law excluded; for a thing perishes for its owner. See Cases, n. 869.