Commodatum
Commodatum or loan for use was established when one person (commodans or commodator) lent an object free of charge to another (commodatarius), usually for a fixed period of time and for a specified purpose.[688] After the agreed period of time for the loan of the object had elapsed, such object had to be returned to the lender.
As this suggests, things that were consumed by use (res consumptibiles) or fungible things (res fungibiles) could not be the object of commodatum, save in certain exceptional cases.[689] It should be noted that this contract was not recognized by the old ius civile but originated from the ius honorarium and was therefore a negotium bonae fidei.As in the case of mutuum, the contract of commodatum was constituted by agreement and the transfer of the object. Otherwise than in mutuum, however, the borrower in commodatum (commodatarius) did not acquire ownership but only detention (detentio) over the thing transferred.[690]
Commodatum may be described as an imperfectly bilateral contract: while in principle it invoked only one obligation (the duty of the borrower to return the same object to the lender after use or at a definite date), a contingent duty might also exist on the part of the lender under certain circumstances.
Besides his basic duty to return the thing on completion of either the time period or purpose for which it was lent, the commodatarius was burdened with the obligation to exercise good care of the thing and return it in as good a condition as when he received it (with the exception of reasonable wear and tear). Furthermore, he was not permitted to use the thing except as authorized by the contractual agreement.
In classical law his liability for the use of the thing was extensive (custodia),[691] although in the law of Justinian he was liable only for dolus and culpa levis in abstracto. However, if he used the object in an unauthorized way or fell into default (mora) he was liable for all risks, even loss or damage caused by superior force (vis maior) or accident (casus fortuitus), and could also be liable in terms offurtum usus or ‘theft of use'.[692]If, after the agreed period of use had elapsed, the borrower did not return the object to the lender or did not return it in a proper condition the lender could employ the actio commodati to enforce his personal right against the borrower.[693] This action was directed at the return of the thing borrowed, or the value thereof, together with the fruits or other proceeds derived from it.[694] On the other hand, the borrower could institute the actio commodati contraria against the lender for the recovery of extraordinary expenses incurred by him in respect of the maintenance of the thing[695] or for damages caused by the thing due to some defect of which the lender was aware.[696] [697] Both the above actions originated from the ius honorarium and were, therefore, based on bona fides.'21
4.4.3
More on the topic Commodatum:
- 1. Commodatum and mutuum
- History and gratuitous nature of commodatum
- COMMODATUM
- 2. Commodatum (Loan for Use)
- CHAPTER 7 Commodatum, Depositum, Pignus
- The actio commodate contraria
- Gratis habitare
- The nature of depositum; depositum miserabile
- Loan for use today
- Real contracts (contractus re) were agreements that became operative and binding on the transfer of possession or physical control of a tangible thing (res corporalis).
- Inde
- 2. THE INFORMAL CONTRACTS
- The first group of informal contracts were those consensu, four of them.
- Depositum
- Pignus (Pledge)