The actio commodate contraria

(a) Commodatum as imperfectly bilateral contract

We have thus far been dealing with the duties of the borrower. It has also already been mentioned that, if he did not duly restore the thing after the termination of the loan, the lender could bring the actio commodati.

In turn, the borrower might, under certain circumstances, have an action against the lender: the actio commodati contraria. The existence of this contrarium iudicium was a characteristic difference between commodatum and both stipulatio and mutuum, which were unilaterally binding contracts. However, it would not be quite correct to place commodatum unqualifiedly into the opposite category of bilateral contracts. The decisive point is that it was not necessarily unilateral; a counterclaim could exist if (and only if) the borrower had incurred expenses or suffered damages. Whereas the actio commodati (directa) was an essential and indispensable element, intrinsically inherent in this type of legal relationship ("principalis actio", as Paulus puts it),^[1054] the counterclaim was only incidental; it was available to the borrower, depending on whether or not its specific prerequisites had been met in each individual case.^[1055] Thus we can call commodatum an imperfectly bilateral contract;^[1056] the writers of the ins commune spoke of a contractus bilateralis inaequalis.^[1057]

(b) Reimbursement of expenses

What were these specific prerequisites for the actio commodati contraria?^[1058] On the one hand, the borrower could claim reimbursement of expenses that he had incurred in connection with the borrowed object: the costs involved in retrieving a borrowed slave who had run away, or in curing his rather less adventurous companion who had fallen ill.^[1059] ^{^[1060] However, it was only for such extraordinary incidents that an action could be brought.}

The ordinary expenses of the preservation of the thing lent had to be borne by the borrower, as a matter of course.^w This applied, for instance in the case of the loan of an animal or of a slave, to the cost of fodder or food respectively.^[1061] After all, it was his contractual duty to preserve and look after the thing properly, and this of necessity involved some expenditure. Only if something had happened that lay beyond the boundaries of his obligation of custodiam praestare could he ask the lender/owner for reimbursement of his impensae necessariae.

On account of such impensae, incidentally, the borrower also had a ius retentionis which enabled him effectively to bar the lender's claim until he had been reimbursed.^[1062] If the lender tried to frustrate this right of retention^[1063] ^{^[1064] ^[1065] by simply taking back his object without further ado, the borrower could bring an actio furti against him—a remedy that was otherwise not available to the borrower against the lender:}

"[Ejrgo si ob aliquas impensas, quas in rem commodatam fccisti, retentionem eius habueris, etiam cum ipso domino, si earn subripiat, habebis furti actionem, quia eo casu quasi pignoris loco ea res fuit.^1,112

On the other hand, the actio commodati contraria could be used to claim damages. Well known is the following example given by Gaius: "Item qui sciens vasa vitiosa commodavit, si ibi infusum vinum vel oleum corruptum effusumve est, condemnandus eo nomine est."¹¹³ The vessels that had been lent proved to be defective, so that the wine or oil contained in them was spoilt or spilt. Another case in point is Paul. D. 13, 6, 17, 3; this text concerns the loan of decayed timber which was to be used for propping up a block of flats.^[1066] It is to be noted that the lender was liable only if he had known about the defects in the article lent ("sciens").

As it was the borrower and not the lender who was interested in and gained the advantage from the contract, it would have been unreasonable to subject the latter to strict and extensive liabilities. The standard of diligence required of the lender thus stood in a relationship of inverse reciprocity to that of the borrower: entirely in accordance with the principle of utility. The scientia requirement is stressed in other texts too, for example in Paul. D. 13, 6, 22. Here a slave had been handed over by way of loan and had subsequently stolen something from the borrower. Of course, the owner of the slave was under noxal liability—he could either pay what was due under the actio furti or surrender the slave.^[1067] But did the borrower in addition have a contractual action against the lender? Only if the latter had known that this particular slave had long fingers.

Later centuries tended to extend the lender's responsibility to gross negligence,^[1068] but apart from that his position remains unchanged in modern law. This has given rise to one particular problem. Where the lender has deliberately handed over a defective object and thus caused damage, the borrower will normally not only have a contractual but also a delictual action. The delictual action, however (based on the lex Aquilia) is not confined to cases of dolus but also lies against the negligent lender. Thus it is clear that to admit a delictual remedy in these cases would seriously undermine the lender's privileged position and make any restriction on his contractual liability more or less meaningless. Thus one could argue that the contractual degree of diligence expected in this situation should be applied to the delictual action too. But then: is it really acceptable to assume generally that what is not forbidden by contract is permitted under the law of delict? The law of delict sanctions general duties of behaviour which have to be observed, irrespective of whether a special (contractual) relationship exists in an individual case.

Which of these two views the Roman lawyers took cannot be determined from the sources.^[1069] The authors of the ius commune were divided on this point.^[1070] Modern German lawyers tend to adopt the former approach and argue that the subjective requirements of § 823 I BGB must be modified by the standard set in §599.^[1071]

Finally, it must be pointed out that the borrower could not only claim under the actio commodati contraria where the damage had been caused by the defective object of the loan. A case in point is Afr. D.13, 6, 21 pr.:

"Rem mihi commodasti: eandem subripuisti: deinde cum commodati ageres nee a te scirem esse subreptam, index me condemnavit et solvi: postea comperi a te esse subreptam: quaesitum est, quae mihi tecum actio sit."

As we have seen, the actio furti was not available to the borrower. However, the lender was liable under the actio commodati contraria.

.. adiuvari quippe nos, non decipi beneficio oportet," as Paulus put it;^[1072] when we lend we ought to confer a benefit and not to do a mischief, and this reasoning underlies all other cases in which the borrower was allowed to claim damages too.^[1073]

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The actio commodate contraria

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