Article — Noldin, Summa of Moral Theology
Article Second. On Commodatum
568. Notion. Commodatum (Leihvertrag) is a contract by which a thing is conceded to another for use alone for a certain time, with the obligation of restoring the same thing after use.
a. He who concedes the thing to another is called the lender for use, but he to whom the thing is conceded for use is called the borrower for use.
b. Commodatum is a gratuitous contract: for if the use of a thing is conceded to another for payment, the contract is rather called lease, even if the thing conceded for use is movable.
c. Commodatum is a real contract, which is essentially perfected only by the handing over of the thing.1
d. The object of this contract can be a movable or immovable thing, provided it is not consumed by use, since it must be returned to the lender for use in its individuality.
e. The time during which the commodatum lasts can be determined either expressly or implicitly; and indeed it is determined implicitly if the thing is conceded for a use which by its nature lasts for a certain time.
f. Commodatum differs from precarium (Bittleihen): for precarium is a contract by which a thing conceded for use can be reclaimed at any time at the pleasure of the one conceding it; on the contrary, in commodatum a thing is conceded for a certain time, so that before the time has elapsed it cannot be reclaimed.
1 C.A. Section 671 grants a civil action to him to whom a promise has been made concerning a thing to be lent for use.
569. Obligations of the borrower for use. a. The borrower for use, who accepted the thing for a certain use, cannot apply it to another use without acting against the contract and therefore committing injustice and being bound to repair the damage, if any, which the owner suffered from it.
b. The borrower for use must bear the ordinary expenses which the use of the thing requires, for example, he must feed a horse lent for use, but not extraordinary expenses, for example, the price of curing a sick horse, which is necessary without his fault.
c. He is bound to guard the thing lent for use diligently, and indeed with greater diligence than a depositary, because the contract redounds solely to his own utility. Hence he is bound to compensate the damages which the thing suffers from his theological fault, and after the sentence of the judge also those which it suffers from merely juridical fault; yet he is not bound to compensate the deterioration which the thing necessarily suffers from licit use.
d. He must restore the thing at the time determined either explicitly or implicitly, even if it is not demanded by the lender for use, because beyond that time he does not have use of the thing; but before the established time he cannot restore the thing against the will of the lender for use.
But if he retains the thing beyond the established time, he must compensate every deterioration which the thing suffers even from a merely fortuitous event, with the sole deterioration excepted which it would have suffered even with the lender for use. Moreover he must compensate the owner for ceasing profit and emergent damage, because he is the unjust cause of these.
e. The deterioration which the thing lent for use suffers from a merely fortuitous event must of itself be borne by the lender for use, because he himself is the owner of the thing; but the deterioration which the thing suffers when the borrower for use applies it to another use than the contract permits, the borrower for use himself must bear.
Whether the borrower for use in this last case, if theological fault was absent, must repair the damage before the sentence of the judge or after the sentence depends on the tenor of the law. Most codes seem to be understood so that they confer on the lender for use only the right of requiring compensation through the judge.
Example. Titius borrows from Sempronius at harvest time a horse for carrying in grain. Since at the same time a theft is committed in the house of Titius, he uses the borrowed horse to pursue the thief; but behold, from a grave wound received by chance, the horse dies.1
1 Lehmkuhl, Das burgerl. Gesetzbuch^2 (Freiburg: Herder, 1900), Section 603; Marres IV, n. 110.
570. Obligations of the lender for use. a. He is bound to disclose to the borrower for use the harmful defects of the thing; but if he omits this in bad faith, he is bound to repair the damage which arises from it for the borrower for use.
b. He must pay the extraordinary expenses which the borrower for use must make in order to preserve the thing, provided they arose without the fault of the borrower for use.
c. He cannot without injury reclaim the thing before the established time, except in the case in which the lender for use himself, from an unforeseen cause, immediately needs his own thing:1 for he is not considered to have obligated himself not to reclaim the thing in this case.
d. If the thing perishes with the borrower for use without his fault or culpable delay, it perishes to the owner, or lender for use.
1 C.A. Section 976 does not admit this; on the contrary, C.G. Section 605 does.