History and gratuitous nature of commodatum
Commodatum, being necessarily gratuitous, is not one of the cornerstones of commercial life. It usually occurs between friends, relatives or neighbours,[970] and litigation involving problems arising from loan is rare.[971] It is therefore not surprising that commodatum as a legally recognized and enforceable contract appeared comparatively late in Roman legal history, namely only towards the end of the Republic.[972] Before that time, a loan was regarded as a matter of amicitia, falling, as it were, outside the sphere of law.
Thus, only the general delictual remedies might have been available where the "borrower" exceeded what had been granted to him as a favour.[973] A contractual action enabling the lender to sue the borrower for the return of his object was first recognized by the praetor.[974] [975] This was the actio commodati, and it was based on a formula in factum concepta:"Si paret Ara Ara ¹ ¹ rem qua de agitur commodasse eamque A° A" redditam non esse, quanti ea res erit, tantam pecuniam index Nnl Nra A" A" condemnato, si non paret, absolvito."1"
By the time the praetorian edict was codified, the lender could, instead, choose to proceed under a formula in ius concepta.[976] Whether the latter was a iudicium bonae fidei or not[977] cannot be established with certainty and remains a matter of speculation.[978] With its intentio incerta ("... quidquid ob earn rem Nm Nm A° A° dare facere oportet")[979] it gave the judge a greater discretion in the process of adjudication, anyway. Under the formula in factum concepta, the defendant could only be condemned into "quanti ea res erit", that is, the objective value of the object and what had been obtained from it.[980]
Commodatum as the gratuitous transfer of a thing for use was different from fiducia cum amico contracta in that it did not involve the transfer of ownership; nor was it confined to res mancipi.
In this respect it was similar to precarium.[981] In contrast to precarium, however, commodatum gave the borrower only detention of the thing and not interdictal possession. On the other hand, precarium did not give rise to a legal relationship; it was a mere factum, revocable at any time.[982] In commodatum the lender was bound to leave the thing with the borrower for whatever time the parties had agreed upon, otherwise until the object had been or could have been used in the way envisaged in the contract.[983] [984] If the lender claimed his thing back prematurely, the borrower could defend the action successfully. The precario tenens at first did not enjoy any protection against the owner; in late classical law, however, we find a tendency to institutionalize precarium as a kind of loan transaction "ad tempus".[985]Commodatum was distinguished from hire (locatio conductio rei) by the fact that it was gratuitous.[986]
3.
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