Deposit, Sequestration, Commodatum and Precarium

564. Notion. Deposit (Verwahrungsvertrag) is a contract by which some thing is received to be guarded and to be restored in kind to the one handing it over.

a. He who deposits a thing is called the depositor, but he with whom the thing is deposited is called the depositary.

b. Deposit can be a gratuitous or onerous contract, according as the depositary undertakes custody of the thing gratuitously or for payment. There are those who say that deposit by its nature is a gratuitous contract, because it is done only for the advantage of the depositor. Hence if payment is required for the custody of the thing, there is not a contract of deposit, but an onerous contract of lease of work. Yet all concede that almost the same obligations exist in each case, both as to the right of the depositor and of the depositary, except that the depositary who accepts payment is bound to guard the thing deposited with greater diligence.

c. Deposit is a real contract, which is perfected only by the real handing over of the thing to be guarded.¹

d. Sometimes it is sufficient that the depositary tacitly consent to the contract; if, for example, travelers deposit their things on a ship or in a house or in a carriage, sailors, innkeepers, and drivers, by the very fact that they see the things being deposited and do not contradict it, tacitly undertake to guard them. Those who practice the carrying of things (die Frachtfuhrer) also undertake their custody when the things to be transported are handed over to them.

¹ C.A. Section 957; C.G. Section 688.

565. Obligations of the depositary. a. The depositary in the custody of the thing is bound to employ that diligence which he is accustomed to employ in guarding a thing of his own of equal value; but he is not bound to employ greater diligence. Therefore in a common danger, for example, of fire or theft, he is not bound to prefer the thing deposited, even if more precious, to his own things, unless he has either expressly obligated himself to this, or stipulated payment for the custody, or the deposit was made solely in favor of the depositary.

b. The depositary cannot use the thing deposited except from the expressed or tacit, or at least reasonably presumed, will of the depositor: for it is not licit to use another's thing without the consent of the owner. The consent of the depositor can be presumed if the thing deposited undergoes no danger and does not become worse from the use.

alpha. To use a thing deposited which is consumed by use, as money, is not a grave sin, provided the depositary is certain that he can restore a thing of the same value; but the depositary commits a grave sin against the conditions of the contract if in this way he exposes himself to the danger of impotence for restoring.

beta. Yet if the depositary illicitly uses the thing deposited, for example, money for business, he can retain the profit received from it, because it is the fruit of his own industry. He is bound only to compensate the damage, if any, which the depositor suffered from the illicit use of the thing.¹

c. The depositary must restore the thing deposited when it is sought by the depositor, whether the time for returning the thing was determined or not; but he cannot return it earlier if the time for guarding the thing had been determined. Nevertheless he is not bound to return the thing deposited: alpha. if he certainly knows that the thing is stolen, because he would cooperate in continuing injury against the owner of the thing; beta. if he knows that the depositor is going to abuse his thing, for example, a sword for killing an enemy, because he would cooperate in inflicting injury; gamma. if the depositor refuses to pay the compensation which the depositary can justly require.

Hence if the depositary refuses to return the thing deposited except in these cases, he commits sin and is bound to repair the damages which arose from this for the owner; and if the thing itself suffers damage from a fortuitous event which it would not have suffered with the owner, he is likewise bound to repair that, for he retains another's thing against the will of the owner reasonably unwilling.

d. He is bound to repair the damage which the thing deposited has suffered: and indeed, if it suffered it because of his grave theological fault, before the sentence of the judge; if it suffered it because of his juridical fault, after the sentence of the judge. But damage which the thing has suffered without any fault of his he is not bound to repair, unless he expressly undertook every danger of the thing upon himself.

¹ C.G. Section 698 differs in this matter from other codes.

566. Obligations of the depositor. The depositor is bound: a. to pay the expenses which the depositary must undergo in guarding the thing; b. to repair the damages which have come to the depositary because of the deposit, and indeed before the sentence of the judge if they have come from theological fault, after the sentence of the judge if from juridical fault only.

567. Sequestration is a species of deposit and is defined: a contract by which a disputed thing is deposited with a third party under this condition, that when the lawsuit has been decided it be restored to the owner.

A distinction is made between conventional sequestration, which is constituted by the private will of the litigants, and judicial sequestration, which is constituted by a judge from office.

He with whom the disputed thing is deposited is called the sequestrator. His obligations are: a. he cannot lay down the office undertaken except from a grave and just cause; b. while the lawsuit has not yet been decided, he cannot return either the whole or a part to one of the depositors.

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.

BAILMENT is a contract by which the possession of chattels is delivered by one person (the bailor) to another person (the bailee) either to be delivered by the bailee to a third person or to be redelivered to the bailor when the purpose of the bailment is at an end.

According to the common enumeration there are six kinds of bailment—depositum, commodatum, locatio et conductio, vadium, locatio operis faciendi, and mandatum. Of these depositum and mandatum are for the benefit of the bailor alone, and the bailee is liable only for gross negligence in the performance of his duty. Commodatum is for the sole benefit of the bailee, who is therefore liable for even slight negligence. The other kinds are for the benefit of both bailor and bailee, and the bailee will be liable for ordinary neglect. The foregoing degrees of negligence are required by law to make the bailee liable, but by express agreement he may bind himself to more or less care, and then he will be held liable accordingly. Moreover, when a bailee possesses any special skill, the omission to use that skill in the execution of the trust committed to him will be imputed as gross negligence even if he derived no benefit from the bailment.

In some orders it was customary for the religious to have money, books, eatables, for their own use, and such allowance was called the peculium of the religious. Such a practice is against the purity of religious poverty, and it was forbidden by the Council of Trent, as well as by several Roman Pontiffs. Indeed, if it was understood that subjects had the right to use and dispose of the peculium as they pleased, in perfect independence of the will of their superior, it would be against In many orders the the very essence of religious poverty. custom is still sanctioned of having a peculium in more or less dependence on the will of the superior.

It is not against poverty to administer money in the name of another, for such administration is not an act of ownership. A religious may, then, act as the almoner of another, but he must not distribute alms in his own name as if the money were his own. To keep a deposit of money with the obligation in justice of accounting for it is against religious poverty.

I. Notion of deposit. Deposit is a contract by which someone hands over to another a thing to be kept, and the other receives it with the burden of keeping it and afterward returning it in kind.

II. Obligations of the depositor. The depositor is bound to reimburse to the depositary the expenses made for conserving and returning the thing.

III. Obligations of the depositary. First, the depositary should not inquire what the deposited thing is, if the thing is closed or sealed. Besides this, he is bound:

1. To keep the deposited thing diligently.

2. Not to use it without the given or legitimately presumed consent of the one depositing. Consent should not easily be presumed, not even with respect to the use of money, though neither closed nor sealed; indeed not even then, when it could immediately be returned to one who asked. Nevertheless, the depositary, by using a deposited thing neither closed nor sealed, does not sin gravely if he is certain that he will be able to return in due time a thing equally good (St. Alphonsus, III, 748).

3. To return the thing to the depositor, and this in kind, as soon as it is asked, and together with the fruits which it has produced. It is said:

a) As soon as it is asked; this does not prevent him from retaining the thing until that which must be paid by reason of the deposit has been paid to him. Indeed, with natural law alone considered, it is licit also, observing what must be observed, to compensate oneself from the deposited thing (St. Alphonsus, III, 753).

b) Together with the fruits; except, however, industrial fruits, which the depositary has received, although illicitly, by using the deposited thing.

4. To what extent the depositary is held for damages arising from juridical fault alone, see n. 1009.

IV. Sequestration. Sequestration is a species of deposit by which a litigated thing is deposited with a third party under this law, that afterward it be handed over to him who has emerged victor.

It is distinguished as twofold, conventional and judicial, according as the thing has been deposited by the mutual consent of the litigants, or by order of the judge.

The obligations of the sequestrator are sufficiently clear from the notion itself and from the things said about deposit.

I. Notion of commodatum. Commodatum is a contract by which someone grants to another the use of a thing gratuitously, under this law, that the latter return the same thing at a determined time. It is said gratuitously; if something is demanded for the use of the thing, there is had a species of letting. Commodatum is called precarium if the use of the thing is granted revocably at the nod of the lender; the name of precarium comes from this, that the one receiving, in the case, is judged continually to pray that he may be able to retain the thing. Commodatum differs from mutuum, in which ownership of the thing is transferred (St. Alphonsus, III, 744, 745, 754).

II. Obligations of the lender. The lender is bound:

1. To manifest harmful defects to the borrower, if he knows them; otherwise he is bound for the damage that follows.

2. Not to demand the thing back before the time fixed.

3. To reimburse to the borrower extraordinary expenses necessary for preserving the thing (St. Alphonsus, III, 747).

III. Obligations of the borrower. He is bound:

1. To keep the thing diligently, and to bear ordinary expenses.

2. Not to use the thing except for the use signified by the contract or by the very nature of the thing; otherwise he is bound for the damage that follows.

3. To return the thing at the time fixed, or when the use has been completed.

4. To what extent he is held for the destruction of the thing and for other damages arising from juridical fault alone, see n. 1009.

Note. Sacred things should not be lent for a use repugnant to their nature (can. 1537).

Forms of Contract.—The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.

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.

What is Deposit, and how is it contracted? - Resp. To the 1st: Deposit is a contract by which a thing is handed over to someone to be guarded gratuitously, under this law, that the same thing be restored whenever it is requested. L. 1 Depositi; C. I. 1835; C. G. 1915; C. A. 957; C. H. 1758, 1760; C. L. 1431; C. B. 688. - A thing, namely movable. Deposit can be constituted only in movable things, C. I. 1831; C. G. 1918; C. H. 1761.

Even in immovables, C. A. 960; L. 746. - Gratuitously; for if a fee or interest has been established, deposit passes into lease and hire, or into loan at interest. L. 1 § Si vestimenta C. h.t.; C. I. 1837; C. G. 1917; C. L. 1432; C. B. 689. - To be guarded; if the depositary is permitted to use it, it almost passes into commodatum or mutuum. L. 24, 26 § 1 h.t.; C. A. 959; C. H. 1768. Almost, since the deposited thing must be restored whenever it is sought. It is handed over, for it is a real contract, which is perfected by delivery of the thing. C. A. 957; C. B. 688.

Resp. To the 2nd: Deposit is contracted expressly or tacitly. Expressly, when such a contract is made explicitly; tacitly, when a thing is brought to those who by reason of office are bound to its custody, such as innkeepers, stable-keepers, and sailors. L. 1 in fi. Naut. Cauponae, etc.; C. I. 1866; C. G. 1952; C. A. 970, 1316; C. B. 701; C. H. 1783. According to the same Italian, French, and Austrian Law, those who exercise transport by land are held to the same obligations for deposited things as innkeepers. They answer for things to be transported as soon as these have been entrusted to them in port or at a station of goods. Loss and deterioration of goods entrusted to the carriers themselves is imputed to the carriers, unless they prove that a fortuitous event or greater force was the cause. But as regards other craftsmen, if they contribute nothing except work to the making of another's thing, when loss of the thing occurs, they are not bound to compensation unless fault has intervened. C. I. 1630, 1631, 1636; C. G. 1782, 1784, 1789; C. A. 970, 1160, 1316.

What are the obligations of the depositary? - 1. The depositary cannot, per se, use the deposited thing. The reason is that the thing is given to him for custody, not its use conceded. Use of the thing can be judged permitted only if it can reasonably be judged that the owner of the thing consents to it, e.g., if by use the thing is exposed to no danger, nor made worse; if someone has deposited money not closed nor sealed. Wherefore, if the owner is unwilling, the owner must be compensated for the use made of the thing, if from this the depositary has become richer. C. I. 1846, 1852; C. G. 1930, 1936; C. H. 1767, 1770; C. A. 958, 961, 965; C. B. 698; C. L. 1437, 1438; Lugo d. 33. n. 4. - But he who truly uses another's thing at his own risk, even if he knows the owner is unwilling, acquires for himself what he gains thence by his own industry. By his own industry, since a thing consumable by use does not bear fruit by that use, but is destroyed. By his own industry, for fruits produced by the thing itself must be returned with the thing itself. C. I. 1852; C. G. 1936; C. A. 958, 961. But C. B. 698 and C. H. 1770 say that if the depositary uses deposited money, interest is owed from the day of use. L. 748.

2. The depositary must take that care of the deposited thing which he takes for his own things. L. 32 h.t.; L. 1 § 5 de Oblig. et action.; C. I. 1343; C. G. 1927; C. H. 1766; C. A. 961, 964; C. B. 690. - This obligation is stricter if the depositary offered himself to receive the deposit; if he stipulated a fee for the deposit; if the deposit was made for the convenience of the depositary alone; if an agreement intervened that he is liable for any fault. C. I. 1844; C. G. 1928; C. H. 1182, 1766; C. L. 1435, 1451. If the deposit is made for the depositor's favor alone, the depositary is bound only to furnish against fraud and grave fault, which is equated with fraud. L. Quod Nerva Dig. Depositi. If the deposit is also made for the favor of the depositary, as when he receives a stipend or fee, the depositary is liable even for slight fault, though not very slight fault. L. Depositum Dig. Depositi § 8 coll. § ult. Inst. de Locat. et cond. Except sailors, innkeepers, and stable-keepers, who are liable even for very slight fault, but not for fortuitous event or greater force. L. Et ita Dig. Nautae etc. Yet Laymann, de Deposito n. 1, with others, judges not improbably that this, namely that they are liable for very slight fault, is not valid in the forum of conscience before the sentence of the judge. - St. Thomas 2. 2. q. 62. a. 6; L. 750. According to C. I. 1867; C. G. 1953; C. H. 1784; C. A. 1316; C. B. 701, innkeepers and stable-keepers as depositaries are liable for theft or damage inflicted, if the theft was perpetrated or the damage inflicted by servants or persons placed over the direction of the inn, or by outsiders who frequent it. The depositary is held by no obligation if anything happens by prevailing greater force, unless he had already previously delayed returning the thing requested by the depositor. C. I. 1845, 1868; C. G. 1929, 1954; C. H. 1182, 1784; C. L. 1435, 1436; C. A. 964, 965. Exception for the internal forum, if the thing would have perished equally and at the same time and danger with the owner, because then that delay was not the cause of the loss. According to C. A. l.c., the depositary is not liable for a fortuitous event, even if the more precious deposited thing could have been saved by damage to his own thing.

3. He must return the deposit as soon as it is sought, if this can be done. L. Depositum § 22 Dig. Depositi. The reason is that the deposited thing is for the convenience of the depositor alone; and accordingly there can per se be no cause for retaining the deposit. Per se; for accidentally it sometimes must not be returned, as if it is demanded for one's own or another's harm. L. Depositum § 39 Dig. Depositi. But the thing is to be restored whenever the thing is asked back, even if perhaps a day was established in the contract for restitution. But before the established day, the depositary regularly cannot restore the thing except from a just cause. C. I. 1860; C. G. 1994; C. A. 462, 963; C. H. 1766, 1775, 1776; C. B. 695, 696; C. L. 1448. If a deposit has been made by a person who can contract obligation with a person who cannot contract it, the depositor has only a vindicatory action for the deposited thing if it exists with the depositary, or otherwise an action of restitution up to the concurrence of the quantity which has been turned to the utility of the depositary. C. I. 1842; C. G. 1926; C. L. 1433. 4. The depositary must restore the deposited thing to him who deposited it. If nevertheless he understands the thing to be stolen and knows its owner, he must warn this owner, after establishing a suitable space of time in which he may himself demand it back; but if this owner has been negligent, the depositary is freed from every obligation by restoring the deposit to him from whom he received it. Therefore the thing is regularly to be restored to him who deposited it, even to a thief, if the owner, having been summoned, has failed. L. 31 h.t.; C. I. 1853, 1854; C. G. 1937, 1938; C. H. 1771; C. L. 1441, 1442. Cf. here 1343, 1351. When the depositor has died, the thing is to be restored to the heir. If there are several heirs and the thing is divisible, his part is to be returned to each; but if the thing is indivisible, all must agree as to the mode of receiving the thing. L. 1 § Si pecunia 36 h.t.; C. I. 1855; C. G. 1939. When the depositary has died, the thing is to be restored by the heir. But if the heir in good faith has sold the thing, he is bound to return only the price, or his action to it, if not yet paid. C. I. 1851. 5. Restitution must be made by him with whom the deposited thing was, and in that place in which the thing is found without bad fraud of the depositary. L. 12 § 1 h.t.; C. I. 1859; C. H. 1774. According to C. G. 1943, in that place in which it was deposited. According to C. B. 697, in that place in which it was to be guarded. 6. The depositary, as also the borrower, cannot compensate to themselves debts from deposit, from commodatum, and precarium. Thus according to positive law. L. ult. C. de Commodato; L. Si quis C. Depositi; C. Bona fides de Deposito; C. I. 1289; C. G. 1293, 1885; C. H. 1200, 1747. Nevertheless, if someone retained the thing under this title, he would indeed sin against legal justice, but by no means against commutative justice. By natural law, "it is probable," says Lessius 1. 2. c. 27. n. 16, "that compensation has place in the forum of conscience when no other reason is available for obtaining the thing owed to oneself." But if the depositary finds that the deposited thing is his own, he is held by no further obligation. C. I. 1861; C. G. 1946; L. 753.

Whether, theological fault being excluded, the depositary is bound to compensation if the thing perishes from his negligence? - These are the words of Busembaum apud St. Alphonsus 749: "If he to whom a thing is lent, leased, deposited, or pledged guards it negligently, so that it perishes, but the negligence is not theological mortal fault, it is probable, as I said from Soto and Sa, that he is not bound to restitution in conscience. Others nevertheless think otherwise, namely, that he who has contracted juridical fault in guarding is bound to restore, if this was grave; and next if it was only slight, indeed even sometimes if it is very slight, namely when the deposit has been made for the convenience of both, and if he receives a price for custody. See Lessius cap. 7 d. 8; Laymann tr. 4 cap. 25, where he teaches that the depositary is held only for fraud, or gross fault, which is equated with fraud." These things as regards Natural Law. As regards Positive Law, cf. 1076. L. 751; St. Thomas 2. 2. q. 62. a. 6.

What are the obligations of the depositor? Necessary expenses made by the depositary must be refunded by the depositor, and the damage which perhaps the depositary suffered on account of the deposit must be compensated. Under this title the depositary can retain the deposit until complete payment of the debt. His office ought to be damaging to no one. L. 5, 23 Depositi; L. 60, 62 § Quod vero 5 de Furt.; C. I. 1862, 1833; C. G. 1947, 1948; C. H. 1779, 1780; C. A. 967; C. B. 693, 694; C. L. 1450.

What is sequestration, and what is its nature? Sequestration differs from deposit insofar as some contested thing is deposited by those who dispute with a third party under this condition, that, when the litigation is finished, it be restored to him whose it will be. L. 110 de Verbor. signif. ff.; C. I. 1870; C. G. 1956; C. H. 1763; C. A. 968. - The sequestrator cannot lay aside the office he has undertaken, against the will of those whose interest is concerned, unless from a grave and just cause, L. 5 § 2 h.t.; C. I. 1874; C. G. 1960; nor can he return a part to one of the depositors. L. 17 h.t.; C. H. 1763. This sequestration is called conventional, and is distinguished entirely from judicial sequestration, which is constituted only by the office of the judge, and can be constituted both for movables and for immovables. C. I. 1875 ff.; C. G. 1961 ff.; C. H. 1785 ff. Also distinguished is sequestration in the hands of third parties, by which namely he who detains a thing of your debtor, or who owes something to your debtor, is prohibited from returning it to him, so that provision may be made for you.

Whether compensation can be made by retaining a thing handed over to the creditor in deposit or on loan? Many deny it, relying on the positive dispositions of the law. C. I. 1289.; C. G. 1293.; C. H. 1200, 1747.; C. A. 1440.; L. ult. § 1. C. de Compensationibus; C. Bona fides de Deposito. "Yet others more probably teach that those laws proceed only in the external forum, in which it is presumed that the debt could have been recovered by another way, and the faith of deposit preserved.... The reason is that the fact that the thing has been deposited with you does not make it more its owner's than before, nor does it oblige you to defend it against the true owner, who wishes to vindicate it, or against him who has a true right to receiving it, if that right is certain to you: indeed you ought to give it, if damage threatens you from another source. Therefore similarly you will be able to take it for yourself, if you have true dominion of it, or a true right against its owner for recovering your debt." Lugo d. 16, n. 89.; Gousset in a. 1293.; C. B. 273, 274.

XI. Those usurping or sequestrating jurisdiction, goods, revenues pertaining to ecclesiastical persons by reason of their churches or benefices.

Those usurping ecclesiastical goods here are those who authoritatively occupy them from the owner as their own, i.e., as if they had right in them. Hence thieves are not comprehended, who, although they themselves invade another's thing, nevertheless invade it as another's, claiming no right in it by which they might retain it as occupied and belonging to themselves. Holy Office, March 9, 1870; Roncaglia, de Cens., tract 4, chap. 4, q. 2, resp. 1. Nor indeed are those comprehended who acquire ecclesiastical goods usurped by others by purchase, donation, or any other contract, although they sin gravely both against justice and against religion; yet they incur the censure imposed by Trent, Holy Office, July 8, 1874, which moreover declared: "usurpers of ecclesiastical goods of this kind are bound only by the excommunication specially reserved to the Roman Pontiff," by force of the present Constitution Apostolicae Sedis, and not also by the excommunication simply reserved by force of the Council of Trent. Sequestrating here are called those who by judicial office and jurisdiction unjustly commit a thing to some third person to be guarded, or guard it themselves, and thus impede it from remaining under the power of him to whom it pertains, and from being freely used by him. Sequestrating: therefore judges are excommunicated. For sequestration has all its force from the mandate of a judge. Sequestrating here are also those who detain a thing by force of sequestration. The plaintiff also seems to be comprehended, for according to common usage he is well said to sequester.

Jurisdiction, even temporal, as is clear from the whole context and because it is said absolutely. Goods, whether immovable or movable. Revenues, whatever the thing bears, or whatever is received with regard to the thing; but by no means proceeds and income from elsewhere, such as daily distributions. Pertaining to ecclesiastical persons: hence those usurping or sequestrating the goods of pious places, namely hospitals, lay confraternities, etc., do not incur this censure, although they are subject to the Tridentine censure. The same must be said of goods which pertain to churches, but not to ecclesiastical persons, e.g., goods destined for repairing a church, performing divine things, relieving the poor, dowering girls, etc.

By reason of their churches or benefices, whether secular or regular; therefore the present excommunication is not incurred if there is question of goods pertaining to ecclesiastical persons, but for another reason. Nor is it incurred if someone usurps or sequestrates these same things while the benefice is vacant; for the present excommunication seems to provide first of all for the ecclesiastical persons themselves: pertaining to ecclesiastical persons.

Of churches: hence those usurping or sequestrating the goods of monasteries do not incur the present censure by force of this clause. Universally and speaking per se, the goods of monasteries do not pertain to ecclesiastical persons, namely to religious, by reason of their churches or benefices, for instance the goods of a College of religious in which boys are educated, etc. The goods of monasteries pertain to no ecclesiastical persons, but pertain either to the Monasteries themselves or to the Roman Church. Of benefices: hence again those usurping or sequestrating the goods or revenues of lay chaplaincies do not incur this censure. For they are not benefices in the true sense, and are resolved into pious foundations or pious legacies. But those usurping or sequestrating the goods or revenues of benefices which are of lay patronage do incur it. For they are benefices accepted in the strict sense, although they are liable to the servitude of patrons, who have the right of presenting the beneficed person when they have become vacant, the right to certain prerogatives of honor, and some right to support if they should tend toward want. C. Generali Constitutione 13, de Electione et elect. potest., in VI; Bull In Coena Domini, sec. 17; Bonacina, disp. 1, q. 18; Suarez, disp. 21, sec. 2, seventeenth censure; Ferraris, v. Bona, art. 1, n. 13 ff.; E.M.

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.

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.

844. Deposit is a contract by which, gratis, a thing is committed to be kept, and accepted, to be restored whole when the depositor pleases.

1. The depositary is bound to preserve and keep the thing deposited with that care and diligence which diligent men are accustomed to apply in preserving similar things belonging to themselves; for he accepted that custody for himself. Hence, if the thing perishes through his fraud, or through carelessness theologically culpable, he is bound to restitution.

2. The depositary cannot use the thing deposited without the express or tacit consent of the owner, or at least a consent prudently presumed; for it is not lawful to use another's thing without consulting the owner.

3. He is bound immediately to return the deposited thing to one asking for it; otherwise he would have another's thing while the owner is reasonably unwilling. Except, unless the depositor asks for it to his own or another's damage; or unless the thing is stolen, and the owner asks for it; or also, at least in conscience, unless the depositary has a just cause of compensation. Moreover the thing deposited must be returned in that state in which it is found at the time of restitution, and with the fruits received from it. But if by the fault of the depositary it has been made worse, he is bound to repair the damage.

The depositor is bound to pay the expenses which the depositary underwent in preserving the thing deposited, and to render him unharmed for all things which he suffered by occasion of the deposit. Thus, for example, if you should deposit a horse in another's stable, you must pay the expenses of its feeding; and if that horse should labor under a contagious disease, by which the horses of the depositary are infected, you are bound to render him unharmed. Hence the saying: One's office ought to be damaging to no one. See Cases, n. 875 and following.

845. Sequestration is a species of deposit, by which a controverted thing is deposited with a third person, so that after the sentence of a judge or arbitrator it may be handed over to the victor.

A twofold sequestration is distinguished: conventional, which is made by the mutual agreement of the contenders; and judicial, which is decreed by the sentence of the judge. Concerning each it will be enough to note the following:

1. The object of sequestration, both conventional and judicial, can be a movable or an immovable thing.

2. Conventional sequestration can be not gratuitous, and then it is a hiring of services, and is subject to the laws of that contract. But if it is gratuitous, it is subject to the same rules as deposit. It is not dissolved, however, unless by mutual consent of the parties, or if a legal cause supervenes.

3. In judicial sequestration the custodian must exercise the care of a good father of a family; but the one committing the custody is bound to pay the depositary the wage established by law. Thus from natural and positive law.

I. Notions. Commodatum (prestito di uso) is a contract by which some thing, as to use alone, is conceded gratuitously, for some certain time, explicitly or implicitly determined.

By precarium a thing is conceded for use gratuitously in the same way, but until the one conceding explicitly or implicitly asks for the same thing back.

II. Obligations. 1. The lender-for-use must hand over the thing affected by no harmful defect concerning which he does not warn the borrower-for-use. He must permit use through the whole promised time, and repay to the borrower-for-use expenses made from urgent necessity lest the thing perish.

If, beyond expectation, he himself needs the thing, from the law of nature he can prefer himself to the borrower-for-use in an equal cause. Several laws sanction this; but not rarely in such a way that the judge has discretion concerning the necessity that has arisen. Thus the French Code, 1889; Italian, 1816; Brazilian, 1250.

2. The borrower-for-use must keep the things loaned-for-use diligently as his own, bear the expenses of preserving the thing, employ the thing only for the use expressly or tacitly agreed upon; and at the end of the commodatum return the same thing with fruits and increments. Of himself he cannot give it to another to be used.

The obligation of answering for fault, both because of delay in restoring and because of violation of his obligations, is made stricter by positive laws, so that sometimes he has to answer for the fortuitous event itself. Thus the Code of France, 1882; of Italy, 1810; of Brazil, 1253, oblige him in a fortuitous event, if, in a disaster in which one or the other had to perish, he preferred his own thing to the thing loaned-for-use.

In French law, 1883; Italian, 1811, he is presumed to have undertaken the fortuitous event upon himself, if, at the beginning of the commodatum, the value of the thing was estimated.

Those obligations will bind conscience after the sentence of a judge. Beforehand, the general rules concerning answering for fault are to be observed. Cf. below, where delict and quasi-delict are treated.

I. Notion. 1. Not everyone who hands over some thing merely to be kept properly intends to make a contract of deposit. For, trusting in the honesty and prudence of another, he can merely materially commit a thing to another without any peculiar obligation of the latter besides that which every man has of not stealing. A religious himself can accept a deposit of this kind without injury to the vow of poverty; while a contract of deposit, without the faculty of the Superior, does not seem able to be celebrated validly or licitly by a religious. Yet it is disputed whether acceptance of a deposit is opposed to the vow of poverty. Molina affirms this, De Contractibus, d. 525, n. 3, on account of the obligation undertaken, while Genicot-Salsmans, II, 93, holds the negative side probable, because the depositary "exercises no act of ownership over the thing deposited." We judge the argument of Molina more effective, which is by no means touched by the reasoning of Genicot.

I. The contract of deposit is a real contract by which one party hands over to another a thing estimable by price to be kept, and the other obligates himself to keep it and to restore it in its proper species. Cf. Italian Code, art. 1835; French, 1915.

II. There is distinguished 1. voluntary deposit and necessary deposit, which someone is compelled to make by an unforeseen event. It is sometimes called miserable. The burden of proof for this deposit is lightened.

To necessary deposit is joined the deposit which travelers are judged to make with public innkeepers of things which they have brought with them. Innkeepers at the same time have these things pledged, and they ought to furnish security concerning their entire restitution. Yet their obligation is tempered or subjected to certain conditions if excessive sums of money are brought.

2. Deposit can be of an ordinary thing, or of a litigated thing. Sequestration is a species of deposit by which a litigated thing, whether by the private will of the claimants or by the authority of the judge, is committed to some third person, who himself is called the sequestrator, to be kept.

III. Obligations. The depositary ought diligently to keep the thing. He can use the deposited thing only from the express, or at least presumed, will of the depositor. If use of a consumable thing is permitted, the deposit is called irregular, and differs from loan only by the faculty which the owner has of demanding the thing back at will. It is clear that the thing must be restored to the owner asking for it. And it seems foreign to the sense of a certain more perfect honesty that someone should compensate himself from a thing deposited. Yet a strict prohibition of natural law is not demonstrated. Positive laws are accustomed to concede only this, that the depositary may exercise the right of retention for obtaining those things which the depositor ought to pay him on the occasion of the deposited thing.

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.

1092. • Deposit is a contract by which a movable thing is handed over to be kept, so that it may be restored whole. - He who deposits the thing is called the one depositing or depositor; but he with whom it is deposited is the depositary.⁰⁵

It is a real contract, which is perfected only by the handing over of the thing. It is, by its nature, gratuitous; but if a price is sanctioned for the keeping of the thing, the rules of deposit nevertheless have force.

Deposit is TWOFOLD: 1. voluntary, which is perfected by the spontaneous will of the contracting parties; and this can be express or tacit; - 2. necessary, called in ancient Law "miserable," which is made when some necessity urges, for example in the case of shipwreck, fire, etc. In modern Law, things deposited with innkeepers and drivers are considered as a necessary deposit.⁰⁶

1093. PRINCIPLES. I. The depositary is held to keep the thing deposited, and to restore it at the judgment of the one depositing. Thus all Laws.

1. He is held to keep the thing diligently;⁰⁷ indeed, he is held to special diligence if he promised it, or if he spontaneously offered himself, or if he sought a wage for the care of the thing, or if he accepted the thing solely for his own benefit, or finally if an express stipulation intervened concerning avoiding any fault whatever. His carelessness induces the obligation of restitution (cf. n. 920). - The depositary cannot watch what sort of thing has been deposited when he accepted it enclosed in a chest or sealed.⁰⁸ Similarly, he cannot without sin use the thing deposited, without at least the presumed consent of the owner; yet the sin will not be grave unless there is grave damage of the one depositing or danger of damage. But if he negotiates with the thing deposited, for example a pastor with the money of confraternities, the fruits belong to the negotiator, unless it has been otherwise established (Ami du Cl., 1910, p. 111; Lehmkuhl, Cas. consc., I, n. 854).

2. He is held to restore the deposit immediately to the one asking for it; and indeed with the fruits perceived from it; otherwise he would retain another's thing. Except unless he certainly knows that the thing is stolen, or unless he would have a certain cause of compensation, or unless he prudently fears lest the owner is going to abuse it (III, 753). Cf. the things said n. 1020.

1094. • II. The one depositing is held to preserve the depositary unharmed. For the axiom bears: "His own office ought to be damaging to no one." Hence, he must warn the depositary of a vice of the thing from which damage could arise to him, and repair all necessary or useful expenses made for keeping the thing (Porpora, tr. I, n. 529).

Let it be noted FROM NEW LAW:⁰⁹ 1. Deposit regularly cannot be made except by the owner of the thing deposited, capable of contracting; or by his express or tacit consent. - 2. Proof of deposit must be made in writing if the thing exceeds the value determined by law, unless it is a question of necessary deposit. - 3. Innkeepers are held concerning the theft or detriment of things deposited, whether the theft or detriment is done by servants or by strangers; but not if it is done with arms or by greater force. But see the things said n. 988.

1095. • II. Sequestration is a species of deposit by which a disputed thing is handed over to another third person to be kept, so that afterwards it may be returned to him to whom it has been adjudged by the judge or by arbitration. It is conventional when it is made by the mutual agreement of the contestants; judicial when it is decreed by the sentence of a judge.

Sequestration is governed by the same principles as deposit. But its object can be not only a movable thing, but also an immovable. It is not dissolved except by the sentence of a judge or by the mutual consent of the parties (Austrian Code, 968).

1096. Loan for use (pret a usage) is a contract by which some movable or immovable thing is conceded gratis for use alone, under this law, that at the determined time it be restored in the individual. He who concedes the thing is called the lender for use; but he to whom it is conceded, the borrower for use.¹⁰

If the use of the thing is not conceded for a certain time, but at the will of the lender for use, the contract is called PRECARIUM (III, 745).

Loan for use is a real contract, which is perfected by the handing over of the thing; and it is essentially gratuitous; for when the stipulation of a price accedes, it passes into a lease of the thing. Its object can be any thing whatever placed in human commerce, provided it is not consumed by that use for which it is conceded, for example gold coins which are conceded for a time for display alone.

1097. • PRINCIPLES. I. The lender for use is held to permit the use of the thing and to undergo the peril of it. The reason for the first is clear from the definition itself. The reason for the second is that the lender for use always remains the owner of the thing. But a thing perishes for its owner (III, 747).

1. He is held to permit the use of the thing; whence he cannot reclaim it before the determined time or before the end has been obtained. Yet if he himself, from an unforeseen case, needed his thing immediately, he could reclaim it, even with equal damage of the borrower for use; because the condition is always considered tacitly to underlie: "unless meanwhile the thing is necessary to me." Austrian Code, n. 976, dissents.

2. He is held to undergo the peril of the thing; and therefore he must of himself sustain detriments arising from fortuitous chance. Likewise, he is held to extraordinary expenses which the preservation of the thing requires, and to disclosing its harmful vices.

1098. II. The borrower for use has a right to the determined use, and is held to preserve the thing diligently. The first is of the essence itself of the contract; the reason for the second is that he who has the benefit ought to have also the intrinsic inconvenience of the thing.

1. He has a right to the determined use, and therefore cannot use the thing for something other than that for which it was conceded. See nevertheless what we noted n. 1093. But he must restore the thing at the established time.

2. He is held to preserve the thing diligently, as a good father of a family; to undergo expenses joined with the ordinary use of the thing; likewise, to make extraordinary expenses which do not suffer delay; but, in this case, the expenses must be refunded to him by the owner, for example if he takes care of a horse laboring under a grave disease without his fault. If the thing, by his fault, has perished or been made worse, he is held to repair the damages; but not if these have arisen from the necessary use itself. He is not held concerning a merely fortuitous case, unless he is in culpable delay, or by a peculiar pact undertook the peril of the thing upon himself (cf. n. 920). See St. Alphonsus (III, 752; H. Ap., X, 137; Delama, n. 192; Austrian Code, 978 and 1311; Lehmkuhl, Cas. consc., I, n. 851).

921. • Loan for use is a contract by which a thing is gratuitously conceded for use alone for a certain time, with the burden of restoring the same thing in individual.

Precarium, which is akin to loan for use, is defined: a contract by which the use of some thing is conceded to someone asking, yet revocable at the will of the one conceding. And in this precarium differs from loan for use, that it is revocable at the judgment of the one conceding.

Hence loan for use differs 1° from lease, by which the use of a thing is indeed conceded, but not gratuitously; 2° from deposit, by which a thing is handed over not for use but for custody; 3° from loan for consumption, by which a thing must be restored only in the same species.

Moreover the object of loan for use or precarium can be any things whatever, whether movable or immovable, placed in civil commerce, provided they are not consumable by that first use for which they are destined.

922. • Generally he ought to use the thing loaned to himself as a good father of a family; but specifically:

1° He cannot use the thing loaned except for the use either conceded to himself, or to which he prudently judges the lender for use consents, or for which the thing is destined from its nature; otherwise he abuses another's thing, and will be bound to repair all damages arising thence.

2° He ought to undergo the necessary expenses for the conservation of the thing, for example, to feed a horse loaned for use; but he is not bound to extraordinary expenses, for example, to care for a horse laboring under a grave illness without his own fault.

3° He ought to return the thing loaned for use at the prefixed time and at his own expense, even if it is not sought back; because the stated day interpellates for the master. If the time of restitution was not prefixed, the thing loaned for use ought to be restored as soon as it has furnished the requested use.

4° If the thing loaned for use suffers some detriment on account of the conceded use without fault of the borrower for use, the latter is not bound to compensation. If it has become worse by his juridical fault, he is bound to compensate in the external forum, and according to not a few Theologians also in the internal forum, since the contract was entered for his utility alone. Yet others deny this very probably, unless a particular agreement concerning this had intervened. Cf. n. 748.

923. • 1° He is bound not to seek back the thing loaned for use before the prefixed time, or at least, if this was not prefixed, before the borrower for use can use it; otherwise he will be held for the damage which the other has experienced from his untimely revocation, since he thus violated another's right acquired by pact. Except a loan for use in favor of the borrower alone, who dies before the prefixed time; or if the lender for use immediately needs the thing, even though the borrower for use would undergo equal damage thence.

2° He is bound to restore extraordinary expenses, urgent and necessary for conserving the thing, which the borrower for use underwent while he could not easily warn the lender for use otherwise.

3° He is bound to open to the borrower for use any harmful defects of the thing loaned for use which he knows; otherwise he will have to compensate the damage arising thence.

4° Finally he is bound to sustain the perils and detriments of the thing arising from a fortuitous event, delay, fault, pact, and special law being excluded, because the thing perishes for the owner.

See Smith n. 325. II.

924. • Deposit is a contract by which a thing to be kept is gratuitously committed and accepted, to be restored entire when it has pleased the depositor. But the care of deposit is judged to be accepted by drivers, sailors, innkeepers, and others obligated by office to keep things, whenever, while they are seeing it, a thing is deposited in a house, carriage, or ship.

1° He is bound to preserve and guard the thing deposited with that care and diligence which diligent men are accustomed to use in conserving a similar thing of their own; for he has taken up this custody of the thing handed over. If the thing deposited perishes by fraud or by his theologically culpable negligence, he is bound to restitution.

2° He cannot use the thing deposited without the express or tacit consent of the owner, or at least prudently presumed; for it is not licit to use another's thing without consulting the owner. But that consent is prudently presumed if the thing is going to become worse from non-use. Therefore sometimes it is licit to ride a horse deposited with you, lest its feet swell by remaining too long in the stable. Likewise if it is a question of a thing consumable by use, for example wheat, or also of money not enclosed in a bag or box, nor fortified by seal, provided the depositary is certain that he will have as much of the same goodness when it is sought back by the depositor.

3° He is bound to return the thing deposited at once to the one asking; for otherwise he would have another's thing while the owner was reasonably unwilling. Except, unless the depositor seeks it back to his own or another's damage; and thus one deferring to return money to a drunkard does not sin, when he is going to abuse it for drinking; or unless the thing is stolen and the owner seeks it back; or also (at least in the forum of conscience) unless the depositary has a just cause of compensation. But the thing deposited ought to be returned in that state in which it is found at the time of restitution, and with the fruits perceived from it. But if by the fault of the depositary it has become worse, he is obligated to repair the damage.

The depositor is bound to pay the expenses which the depositary underwent in preserving the thing deposited, and to render him unharmed for all things which he has suffered on occasion of the deposit. Thus for example, if you deposited a horse in another's stable, you ought to pay the expenses of nourishment; and if that horse labors under a contagious disease by which the horses of the depositary are infected, you must render him unharmed, for one's office ought to be damaging to no one.

See Smith n. 325. I.

572. Commodatum (pret a usage; bruikleening) is the gratuitous concession of some thing as regards use alone for a certain time (a. 1875-1878). It is said:

1. Concession of a thing as regards use alone: thus it is distinguished from deposit, in which of itself not even the use of the thing is conceded, and from mutuum, in which use and dominion are conceded at the same time. Hence only a non-fungible thing and one not consumable by first use can be given in commodatum; but not a thing consumable by first use or fungible as such, although this can be given in commodatum for a certain secondary end and use according to which it is not consumed, for example, for display, as a pledge, etc.; but then under this respect it is no longer consumable by first use;

2. Gratuitous, because if anything were demanded for the use, it would be letting;

3. For a certain time, because if it is conceded not for a determined time but at the will of the one conceding, it is called a precarium (precaire; leening tot wederopzeggen, of naar goeddunken).

573. Obligations arising from commodatum are determined by natural and civil law together:

A. In the lender for use they are: 1. Not to demand the thing back before the time explicitly or implicitly prefixed, unless an urgent necessity not foreseen supervenes;

2. To undergo extraordinary expenses necessary for the conservation of the thing, for example, for caring for a horse injured without fault of the borrower for use;

3. To reveal defects harmful to the other; otherwise, if he knew them, he is held concerning the damages which would arise from them for the borrower for use (C. C., a. 1888-1891).

B. In the borrower for use they are: 1. To guard the thing with that diligence which a good father of a family applies in his own things; and therefore not to use it except for the use conceded to him or to which the owner would consent; otherwise he would be held to repair damages;

2. To bear ordinary expenses necessary for the conservation of the thing, for example, to feed a horse;

3. At the established time and at his own expense, to restore the same thing in individual, safe and whole (C. C., a. 1880-87).

The rights and obligations of the lender for use pass to his heirs; likewise for the heirs of the borrower for use, unless the thing was conceded, because of a peculiar reason, only to the person of the deceased, in which case they cannot retain it (a. 1879). Destruction of the thing or detriments arising from a fortuitous event fall upon the lender, as being the owner of the thing, with the delay or fault of the borrower for use excluded (for example, prohibited use, or if he could have withdrawn the thing even by substituting his own, from a. 1882), or a special pact by which he had obligated himself to this. But if theological fault is lacking, he is not held to repair except after the sentence of a judge.

584. Deposit in general (depot; bewaargeving, a. 1915) is the act by which someone receives another's thing to be guarded and to be returned in kind; but deposit properly so called is the contract by which a thing to be guarded is handed over to another, so that the same thing may be returned gratuitously and whole at the will of the depositor. Hence:

1. It is an essentially gratuitous contract (a. 1917): for if something must be paid for the custody, it does not remain a mere deposit but is as it were a letting;

2. As object it can have only movables (a. 1918);

3. It is a real contract which is not perfected except either by real delivery, or by supposed delivery of a thing which was already possessed by another title (a. 1919).

One deposit is voluntary, which is perfected by the mutual and express consent of the depositor and depositary (a. 1921); another is necessary, when the depositary is not chosen altogether freely, as happens in two cases: a) in case of fire, ruin, or shipwreck (a. 1949), and hence it is called a miserable deposit; b) when certain objects are entrusted by travelers to innkeepers or their servants, stable-keepers, sailors, and the like, all of whom are held concerning theft or any other detriment of things pertaining to travelers (a. 1953), unless armed force or another greater force intervened (a. 1954).

585. The obligations of the depositary are:

1. To preserve and guard the deposited thing diligently, with that fidelity and care with which he is accustomed to preserve his own things (a. 1927); whence, if it perishes or becomes worse from malice or other grave theological fault, he is held to compensate it.

This rule, according to a. 1928, is to be applied more strictly, so that then the diligence which a good father of a family applies in guarding his own things is required: a) if the depositary offered himself to receive the deposit; b) if an agreement intervened that he be held concerning any fault whatever; c) if he stipulated a wage for the custody of the thing; d) if the deposit was made for the advantage of the depositary alone. Nevertheless the depositary is never held if something happens by a superior greater force, unless he had already previously delayed returning the thing demanded by the depositor (a. 1929).

2. Not to use the deposited thing without the express, or at least reasonably presumed, permission of the owner; otherwise he will be held concerning the damage that followed (a. 1930).

3. To return without delay the identically same thing, as soon as it is demanded back by the depositor (a. 1932), unless by accident the latter demands it back in order to harm himself or others, or the thing is stolen and its owner demands it back (a. 1938), or unless the depositary has a just cause of retention, for example, if expenses made for conservation have not yet been restored (a. 1948).

4. To return the deposited thing only in that state in which it is found at the time of restitution (a. 1933). Hence if it was taken away by force, he is held to return what he received in its place; if it produced fruits, he must restore these also; but he owes no interest of the deposited money to the depositor, except from the day on which he was in delay in restoring (a. 1933 sq.).

586. The obligations of the depositor are:

1. To disclose a defect of the thing from which damage can come to the depositary, for example, a contagious disease of a horse.

2. To pay expenses if any must be made, or to repair damages if they followed in preserving or returning the deposit, for example, to pay for the nourishment of a horse (a. 1947).

3. To receive the deposited thing after the lapse of the established time, or even sooner, if the depositary can no longer retain the thing.

587. Sequestration (sequestratie) is a species of deposit. It is the contract by which a thing disputed among several persons, or judicially seized, is deposited with a third person, who is called a sequestrator, for the end that after the sentence of the judge or arbiter it may be handed over to him who has won the case (a. 1956); it should be noted, however, that not only movable things but also immovable things can be subjected to sequestration (a. 1959).

One sequestration is conventional, which is made by mutual agreement or the mere will of the parties; another is judicial, which is decreed by the sentence of a judge (a. 1955 sq.). The first, if it is gratuitous, is subject to the same rules as deposit properly so called (a. 1958); if it is not gratuitous, it is held as a hiring of work and is ruled by its rules. The other, which is left to the judgment of the judge to be prescribed, is not gratuitous by its nature, but the salary to be paid is determined by the law itself of sequestration (a. 1962).

But the depositary to whom the thing to be guarded has been handed over cannot be freed from the custody of the thing before the lawsuit has been settled, unless all whose interest it is have consented, or another legitimate reason is given (a. 1960).

Commodatum is a contract by which a thing is granted gratuitously for use alone for a certain time, with the burden of restoring the same individual thing. But precarium is a contract by which the use of some thing is granted to someone asking, yet revocable at the will of the one granting. - Wherefore the object of commodatum or precarium can be any things whatever, whether movable or immovable, placed in civil commerce, provided they are not consumable by the first use to which they are destined.

Commodatum differs: 1st, from hiring, by which the use of a thing is indeed granted but not gratuitously; 2nd, from deposit, by which a thing is handed over not for use but for custody; 3rd, from mutuum, by which the thing must be restored only in the same species. But precarium differs from commodatum only in this, that it is revocable at the discretion of the one granting.

As regards the obligations of the borrower for use and of the lender for use, these few things are to be held:

I. The borrower for use generally ought to use the thing lent to him as a good father of a family; but specifically: 1st, he cannot use the thing lent except for the use either granted to him, or to which he prudently judges the lender for use to consent, or to which the thing by its nature is destined; otherwise he abuses another's thing and will be held to repair all damages proceeding therefrom; 2nd, he must undergo the expenses necessary for the preservation of the thing, for example, to feed a horse lent for use; but he is not held to extraordinary expenses, for example, for curing a horse laboring under grave disease without his fault; 3rd, he must return the thing lent for use at the prefixed time and at his own expense, even if it is not asked for, because the appointed day makes demand on behalf of the owner. If the time of restitution has not been prefixed, the thing lent for use must be restored as soon as it has furnished the requested use.

II. The lender for use is held: 1st, not to ask back the thing lent before the prefixed time, or at least, if this was not prefixed, before the borrower for use is able to use it; otherwise he will be held for the damage which the other has experienced from his untimely revocation, since he has thus violated another's right acquired by pact, unless the thing was lent for the favor of the borrower for use alone, who dies before the prefixed time; or unless the lender for use himself immediately needs his thing because of an unforeseen case; 2nd, he is held to restore extraordinary expenses which the borrower for use underwent as urgent and necessary for preserving the thing, while otherwise he could not easily warn the lender for use; 3rd, if he knows any harmful defects of the thing lent, he is held to disclose them to the borrower for use; otherwise he will have to compensate the damage proceeding therefrom; 4th, finally, he is held to sustain the perils and detriments of the thing arising from a fortuitous case, excluding delay, fault, pact, and particular law, because according to the axiom: A thing perishes to its owner.

Deposit is a contract by which a thing to be guarded is gratuitously committed and accepted, to be restored entire when it pleases the depositor.

But sequestration is a species of deposit, by which a disputed thing is deposited with a third party, so that after the sentence of a judge or arbitrator it may be handed over to the victor. A twofold sequestration is distinguished: conventional, which occurs by mutual agreement of the contenders; judicial, which is decreed by sentence of the judge.

Concerning the obligations of the depositary and of the depositor, hold these things:

I. The depositary is held: 1st, to preserve and guard the deposited thing with that care and diligence which diligent men are accustomed to employ in preserving a similar thing of their own; for he has undertaken this custody of the thing handed over; 2nd, he cannot use the deposited thing without the express or tacit consent of the owner, or at least consent prudently presumed; for it is not licit to use another's thing without consulting the owner; 3rd, he is held immediately to return the deposited thing to the one asking, for otherwise he would have another's thing while the owner is reasonably unwilling.

II. The depositor is held to pay the expenses which the depositary underwent in preserving the thing deposited, and to indemnify him for all things which he suffered on occasion of the deposit. Thus, for example, if you deposited a horse in another's stable, you ought to pay the expenses of feeding; and if that horse labors under a contagious disease from which the horses of the depositary are infected, you ought to indemnify him according to the saying: His office ought to be harmful to no one.

Concerning sequestration it will be enough to indicate the following:

I. The object of both conventional and judicial sequestration can be a movable or immovable thing.

II. Conventional sequestration can be not gratuitous, and then it becomes a hiring of work and is subject to the laws of that contract. But if it is gratuitous, it is subject to the same rules as deposit. Nevertheless it is not dissolved unless the mutual consent of the parties or a legal cause supervenes.

III. In judicial sequestration, the custodian ought to exercise the care of a good father of a family; but the one committing to custody is held to pay the depositary the wage established by law.

I. QUESTION I. What is assurance? ANSWER. It is a contract by which for an agreed price a man takes upon himself another's danger, being about to compensate it either wholly or in part. The quantity of the price is fixed by the laws of the marketplaces. All grant that this contract is lawful. In the chapter Naviganti the assurance prohibited is in respect of a lender, on account of the danger of usury.

II. QUESTION II. What is suretyship, pledge, hypothec, and composition? ANSWER. Suretyship is the taking upon oneself of another's obligation, by which a man binds himself to fulfil it, the principal debtor failing. That contract is called subsidiary and accessory, because the surety is substituted for the principal debtor. He who constitutes himself a principal debtor for another is not properly a surety. Often nevertheless sureties constitute themselves principal debtors, who are called mallevadori in principalità. These can be directly compelled to payment, the first debtor being left aside.

III. Pledge and hypothec are wont to be taken for the same thing. Strictly taken, nevertheless, those contracts differ: for a pledge is of movables only, a hypothec of immovables. A pledge is defined a contract by which a movable thing is delivered to a creditor for the security of a debt. A hypothec is a contract by which an immovable thing, by a bare convention, without delivery, is obligated to a creditor for the security of a debt, so that if the other do not satisfy, satisfaction may thence be sought. A hypothec is twofold: one general, by which all goods are obligated; the other particular, by which a man obligates some determinate thing.

IV. Composition is an onerous convention by which doubtful and uncertain rights between parties are settled. This, lawfully constituted between the parties, has the same force as a judge's sentence. Wherefore, it being once carried out, restitution in integrum is not granted, unless an enormous injury appear. Would that this contract, useful to both parties, were more frequent, so many lawsuits pernicious even to the victors being dismissed.

V. QUESTION III. What is emphyteusis? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred for a long time, the direct being retained, with the burden imposed of an annual pension to be paid. The word emphyteusis is Greek, which in Latin signifies grafting or planting: because formerly untilled estates were delivered to be planted.

VI. If an emphyteuta for three years does not pay the agreed pension entire to a lay lord, and for two years to a church, by that very fact he falls under the penalty of forfeiture, and the proprietary lord can deprive him of the emphyteutic thing with all the improvements made.

VII. QUESTION IV. What is a fief? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred, the direct dominion being retained, under the burden of fidelity and of personal service. It differs from emphyteusis, because a feudatory or vassal does not pay the lord an annual pension, as an emphyteuta does, but only owes personal service of defence, aid, and fidelity, when required by the lord.

VIII. QUESTION V. What is a loan for use? ANSWER. It is the gratuitous granting of some thing as regards its use only for a fixed time. But precarium is the gratuitous granting of some thing as regards its use only, revocable at the pleasure of the grantor. Contracts of this kind are akin; they differ only in this, that a precarium can be demanded back at the pleasure of the grantor, but a loan for use only when the appointed time has elapsed.

IX. QUESTION VI. What is a deposit? ANSWER. It is a contract by which a thing is committed to another's trust for custody alone, that it may be rendered back entire. There is required the mutual consent of the depositor and of the depositary. A depositary cannot use the thing deposited without the depositor's consent. If nevertheless it be money which suffers loss from use, he can use it, provided he be always ready to render it at the depositor's pleasure. He ought to use diligence in the custody. If loss follow, he is held to recompense for grave fault only. Cloistered religious cannot undertake a deposit without the prelate's licence: the monastery is not held to compensation if the deposit perish with a private religious, or with the prelate, unless they had undertaken it with the chapter's consent. The rest, by reason of mind, are capable of receiving a deposit.

X. QUESTION VII. What is letting? ANSWER. It is an onerous contract by which the use, or the fruits, of a thing or of a person is sold for a price. Hiring is a contract by which the use of a thing or of a person is bought for a price.

XI. QUESTION VIII. Do those sin who let houses for the exercising of usuries, for harlotry? ANSWER. All the Fathers affirm it, as I have made plain elsewhere. Fr. Claude La Croix, Book 3, part 2, doubt 1, no. 1042, heaps up opposed opinions — probable, improbable, and lax — and after his manner subjects the same to the discretion of his readers, as if Pyrrhonism were Christian morality. He shows himself nevertheless to incline to the opinion teaching that such letting is lawful: because this, he says, tends proximately to the giving of a habitation, but remotely affords an occasion of sinning. This opinion, as it seems to me, is false. See what has been said where scandal was treated.

XII. QUESTION IX. What is a promise, and what is its obligation? ANSWER. It is the free and spontaneous giving of one's word concerning a thing lawful and possible. For there is required for a true promise an obligation of furnishing, out of the virtue of fidelity, that which is promised; nor does the mere will of doing suffice; and therefore it is called a giving of one's word. It is called free and spontaneous, because a promise is a gratuitous contract.

XIII. That a promise may bring in an obligation, it must be accepted by him to whom it is made. A promise confirmed by oath cannot be revoked before acceptance, because the promiser by the bond of religion binds himself not to revoke the promise, whatever some may say to the contrary. The gravity of the obligation in a gratuitous promise depends upon the intention of the promiser, who as regards this is the lawgiver.

XIV. QUESTION X. What is a donation? ANSWER. It is the liberal delivery of some thing. One is real, set in the delivery of the thing; another verbal, by which a man gives an absent thing, which is an imperfect donation, and rather a promise. Again, a donation is distributed into absolute, which is perfect, and conditional, which has a condition annexed. Lastly, one donation is between the living, which continuously transfers dominion to the donee, even while the donor lives; another is a donation by reason of death, in which a man now gives a thing, but to be possessed after death. This is revocable, the former not, a few cases excepted.

XV. Those can give who possess absolute dominion of the thing to be given. Hence religious cannot give. The causes of revoking a donation are: first, the donee's ingratitude proved in court; second, offspring afterwards received; third, if the donation be undutiful, against paternal piety toward sons, as if it injure the lawful portion owed to sons; fourth, if anything be given for a cause, and the cause do not follow.