§ 3. On Loan for Use, Precarium, Deposit, Sequestration, Mandate, and Management of Affairs

283. We treat all these gratuitous bilateral contracts very briefly, because it is sufficient for the confessor to apply the principles given concerning contracts in general.

A loan for use⁷⁸ is the gratuitous concession of some non-fungible thing for a sole and determinate use and for a fixed time.⁷⁹ If money is demanded for that concession, then it is already an onerous contract and is rather called letting and hiring, which will be discussed below, n. 305. The obligations of the lender and borrower for use are to be weighed a) from the agreement freely entered into; b) from the civil laws.

A precarium⁸⁰ is the same as a loan for use, with this difference: in a contract of precarium the thing lent can be demanded back at any moment at will, while in a loan for use this is not permitted until the stipulated time has elapsed.⁸¹

A deposit⁸² is a contract by which a movable thing is delivered to someone to be guarded gratuitously, on the condition that it be returned at the will of the depositor. According to modern practice, a thing to be guarded is often not received gratuitously, but some remuneration is demanded for its custody.⁸³ Positive laws are to be observed, especially if there is question of baggage deposited in railway stations, things entrusted to innkeepers, shares and bonds deposited in some bank, etc.

Generally it can be said:

1. The depositary, i.e., he with whom a thing is deposited, must exercise over the deposited thing that care which prudent and conscientious men have concerning such a thing. If he does not do this, he is compelled by a competent judge to repair any damage that may have arisen; indeed, he is bound even before the sentence of a judge, at least if his negligence was gravely culpable.

2. The depositary cannot use the deposited thing without the permission of the depositor, whether express or at least prudently presumed. This is evident of itself, for it is not lawful to use another's thing without the owner's permission. But if the depositary has illicitly used the deposited thing, e.g., money for trading, and has thereby taken profit, it must be seen whether such profit is an industrial fruit or a civil or natural fruit of the deposited thing. If it was an industrial fruit, he can retain the profit for himself; otherwise he must restore it to the owner according to the adage: "A thing bears fruit for its owner."⁸⁴

A sequestration⁸⁵ is a species of deposit; for it is a contract by which a thing in litigation is deposited with a third person under the condition that, when the litigation has been decided, it be restored to the victor.⁸⁶ It is conventional when it is made by the mutual will of the litigants; judicial when it is decreed by a judge. He with whom the thing in litigation is deposited is called the sequestrator. His obligations are: 1. in guarding and preserving the thing he must employ no less diligence than he employs for his own things; 2. he must not return the sequestered thing unless the judge so establishes or all the litigants so consent.

A mandate⁸⁷ is a contract by which one person undertakes to conduct a business in the name of another. Although this contract by its nature is gratuitous, it is nevertheless generally entered into for an agreed compensation. Civil codes are wont to establish very precisely the rights and obligations both of the mandator and of the mandatary. These statutes are to be observed also in the forum of conscience.

The management of affairs⁸⁸ is a quasi-contract by which someone undertakes the business of another without an express mandate indeed, but from the presumed will of the absent owner. The management of affairs is nothing other than a presumed mandate. It takes place, e.g., if someone finds a thing which he is bound to guard faithfully by the presumed will of the legitimate owner until the latter appears and pays all necessary expenses.⁸⁹

⁷⁸ Loan for use (Leihvertrag, prêt à usage, commodat, loan).

⁷⁹ Cf. German Civil Code § 598ff.; Swiss Code of Obligations art. 305ff.

⁸⁰ Gratuitous loan at will, a loan revocable at will (Bittleihe, Leihe auf Widerruf).

⁸¹ A precarium is defined in Roman law (L. 1, Dig. 43, 26) as that which is granted for use to one asking by entreaties for as long as he who granted it permits. In present-day laws, precarium is not wont to be considered a contract distinct from loan for use. Precarium must not be confused with the precaria of canon law. For precariae, or precaria in the singular, is a contract introduced by canon law by which, at entreaty and generally by reason of remuneration, the usufruct of some estate or other ecclesiastical immovable thing is granted to someone for the days of his life or for another time, under the law that every five years renewal of this concession or contract is to be sought (c. 1, 2, X 3, 14; cf. Ferraris, Prompta Bibl., s.v. "Precarium," n. 11). These precariae are the precursors of ecclesiastical benefices. Nevertheless, precariae were sometimes also granted to laymen (cf. Wetzer and Welte, Kirchenlexikon, s.v. "Precarium").

⁸² Contract of safekeeping or deposit (Verwahrungs- oder Hinterlegungsvertrag). German Civil Code § 688ff.; Swiss Code of Obligations art. 472.

⁸³ Cf. German Civil Code § 688ff.; French Civil Code art. 1917ff.

⁸⁴ Cf. St. Alphonsus, Theol. mor. l. 3, n. 748; French Civil Code art. 1936.

⁸⁵ Deposit of a disputed thing (Hinterlegung einer strittigen Sache).

⁸⁶ Cf. French Civil Code art. 1955ff.; Swiss Code of Obligations art. 480; Code of Canon Law, canon 1672ff.

⁸⁷ Power of attorney, authorization (Vollmacht, Ermächtigung).

⁸⁸ Representation without authority (Vertretung ohne Vollmacht).

⁸⁹ Cf. above, concerning finding, n. 48.