Contract | COMMODATUM |
Object | Loan of use |
Definition | There will be a commodatum when a person gives something for free to another person an immovable, not fungible and not consumable object for him to use it. After the use has been done the same thing must be returned. |
Type of contract | Real, gratuit, bilateral, Bonae Fidei (praetorian origin) |
Parties | Commodans: Lender Comodatarium: Borrower- sole beneficiary of this contract |
Obligation | Lender: To allow the use of the thing Borrower: To return the thing after the agreed term |
Essential Elements |
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Standard of care | Omnia diligentia: Borrower must take care of the thing as a bonus pater familias = objective standard/ higher care than he would take with his own things. Borrower is liable for loss when: thing is stolen (he should have taken care of it), when it is lost due to his/her negligence. Not liable for accident or loss for causes beyond his control (vis maior/force majeure) Lender is liable for: extraordinary expenses in caring of the thing, fraud (dolus) or gross negligence (culpa lata) |
Actions | Default of borrower: Actio commodati directa Different use by the borrower: Actio furti To enforce the borrowers rights: Actio commodati contraria |
What are the differences and similarities between mutuum and commadatum?
ReplyDeleteThe differences are:
ReplyDeleteMutuum is a loan of consumption, whereas Commodatum is a loan of use.
Firstly, the kind of res of each contract is different because while in the Mutuum you lend fungibles and consumables and return not the same thing but the equivalent; in the commodatum the loan is of non consummables, like a jar or a tray, for a specific use. Secondly, in the Mutuum there is transfer of ownership, but not in the commodatum.Also, the mutuum was a stricti iuris contract whereas the commodatum was a bonae fideii one.
Finally, in the Mutuum there is not standard of care because the obligation is to restore something of similar quality and quantity. Instead, in the commodatum, the obligation was to restore the same thing received in loan, and because the beneficiary of the commodatum was the person who borrowed the thing, he had to care for the thing with omnia diligentia.
The similarities are that both contracts are gratuitous (even if you can do a separate stipulatio to agree on interest on the mutuum) real and that they entail the conceptual action of a loan.