Commodatum (Loan for Use)

(1) Nature and Development

Commodatum was a contract of loan where the original thing lent was to be returned to the lender. As with mutuum, it was gratuitous: if payment was made, the contract would be one of hire instead.

(2) The Borrower’s Duties

The borrower owed certain duties, enforced by means of the actio commodati (action on the loan for use).

The borrower's basic duty was to use the property only for the purposes for which it had been lent. Indeed, a borrower who used the property for any other purpose might well be held liable for theft.^[2104]

During the period of loan, the borrower owed a duty to take care of the property. Subject to contrary agreement, the standard of care required var­ied depending on who was intended to benefit from the loan. Most loans were intended to benefit the borrower, of course, and in that case the standard of care owed was ‘that which the most careful paterfamilias shows in his own affairs'.^[2105] It was not enough for the borrower to apply his or her normal standard if others could do better. The borrower would therefore only be excused of liability for things that were completely outwith the borrower’s control. The borrower would be strictly liable,^[2106] though, if the property was used for anything other than the agreed purpose (as well as potentially incurring liability for theft). The example Gaius gives is someone who borrows silverware for a dinner party, and who then takes the silverware abroad. Such a person is liable even if the silverware is lost to pirates or robbers or in a shipwreck.^[2107]

Some loans were thought of as being for the lender’s benefit.

Finally, some loans were for the benefit of both borrower and lender. Gaius gives the example of one party lending silverware to another for a dinner party in which both are participating.^[2109] The position on this seems to have been disputed here, but it appears that the borrower would be required to exercise the same standard of care as in his or her own affairs.

The borrower was obliged to return the goods at the end of the loan period, in the proper condition. Any damage for which the borrower was liable as out­lined in the previous two paragraphs, or which arose while the borrower was late in returning the property, had to be made good.^[2110]

(3) The Lender’s Duties

The lender was obliged to allow the borrower to use the property for the agreed period. As Paul points out, the loan did not have to be given, but once it is given then decency requires the lender to carry through what has been agreed.^[2111]

Subject to the borrower’s duty to take care, the lender was liable to pay any extraordinary expenses that arose with respect to the property, for example expenditure on treatment for a slave who has fallen ill or on tracking down a slave who has run off. Normal expenses, though, such as food for borrowed slaves or smaller repairs, fell on the borrower.^[2112] The lender was also liable where damage resulted from his or her fault, for example where someone knowingly lent defec­tive containers from which wine or oil leaked and was lost.^[2113]

If any liability arose for the lender to compensate the borrower, the borrower could retain the property until this was paid. The lender, even though owner, would commit theft by taking the property back in such circumstances without the consent of the borrower.^[2114] If the amount due exceeded the value of the prop­erty, this could be claimed by means of the actio commodati contraria (counter-action on the loan for use).

D.