Gratis habitare

A difficult problem of delimitation cropped up where free habitation was granted.^[987] Was this still commodatum or did it not rather have to be considered as a case of donation? According to Labeo and the Proculians, land could not be the object of commodatum.^{[988] [989] This opinion, however, did not prevail: "sed ut apparet, proprie commodata res dicitur et quae soli est, idque et Cassius existimat.1,33 On that basis Vivianus was able to answer the question "Si gratuitam tibi habitationem dedero, an commodati agere possim?", in the affirmative.[990] It is, however, not entirely clear whether gratis habitare was generally considered to fall under commodatum.}

"In aedibus alienis habitare gratis donatio videtur, id enim ipsum capere videtur qui habitat, quod mercedem pro habitatione non solvit, potest enim et citra corporis donationem valere donatio, velut si donationis causa cum debitore meo paciscar, ne ante certum tempus ab eo petam."^[991]

This fragment refers to the lex Cincia de donis et muneribus, which limited gifts to a certain maximum amount.^[992] It can be read to imply a straightforward classification of gratis habitare as donation.^{[993] [994] It has been argued,3S however, that Pomponius, while not disputing the classification of this transaction as commodatum, nevertheless applied certain rules relating to the law of donation by analogy—the analogy being based on a fictitious splitting-up of the transaction into a contract of hire and a remissio mercedis, a remission of the rent. The latter, obviously, implies a gift of money. The problem, incidentally, is still exercising lawyers' minds today. The German Federal Supreme Court has in recent times managed to perform a surprising double-volte. Contrary to previous decisions, it has described in two pronounce­ments of 1970 the granting of free habitation as a donation of possession and use.[995] In 1981 the court again changed its opinion; the transaction is now once more considered to constitute a loan for use.[996]}

4.