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COMMODA´TUM

COMMODA´TUM is one of the Roman obligations contracted re, by delivery. It is the gratuitous loan of a res non fungibilis, the loan of res fungibiles being called MUTUUM: in the latter not the very thing lent has to be returned, but an equivalent in quantity and quality (e. g. money, corn, wine, oil); in the former the borrower ( “commodatarius, is qui rem commodatam accepit” ) has to restore to the lender (commodator) the very thing lent. As the Romans say, it has to be returned in specie, not in genere: whence Isidorus says (Orig. 5.25), “inter commodatum et mutuo datum nonnihil distat: commodamus amico pro tempore . . . . hanc ipsam rem, quam dedimus, recepturi.” (Cf. Agroecius, de Orthographia, pp. 2274, Putsch.) In mutuum, again, the property in the thing lent passed to the borrower (whence the name, “quia ita tibi a me datum est, ex meo tuum fiat,” Gaius, 3.90); but in commodatum the borrower acquired only detention or naturalis possessio (Dig. 13, 6, 8 and 9). If a thing were lent for a “consideration” instead of gratuitously, the contract was of a different nature; it was not commodatum, but locatio conductio, which was consensual, not real.

The duties of the borrower, which were enforced by actio commodati directa, an action which could be formulated either in jus or in factum (Gaius, 4.47), were to return the res commodata (and its fruits borne while lent) at the time agreed upon, or, if there had been none, when the purpose for which it had been borrowed was satisfied; to take care of it in the fashion of a bonus paterfamilias (i. e. he was answerable for culpa levis in abstracto; see CULPA); and to use it only for the purpose for which it had been borrowed: to use it for any other, if the borrower thought this would not have been allowed by the lender, was theft in law (Gaius, 3.195). If a thing was lent to two or more persons together, each was severally liable to pay the whole damages (in solidum) occasioned by breach of any of these duties. The obligations of the commodator (enforced by actio commodati contraria) were mostly only ex post facto; to let the borrower use the thing for the time or for the purpose agreed on (Dig. 13, 6, 17, 3), and to indemnify him for all unusual but necessary costs incurred in connexion with the object lent, and also for all damages occasioned by his own negligence (though here he was answerable only for culpa lata): e. g. if he knowingly lent rotten timber for shoring up a house, which fell in consequence, he must pay damages. The borrower's rights against the commodator could also be enforced by retentio or lien. (Gaius, 3.196, 197, 206, 4.47; Paul. Sent. rec. 2.4; Dig. 13, 6; 44, 7, 1, 3 and 4; Cod. 4.23.)

[J.B.M]

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