Tuesday, September 28, 2010

COMMODATUM

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

  1. Handover of the thing: there is no tradition – no change of owner
  2. Object
  3. Not consumable/fungible: the thing must be susceptible to be returned

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


 

2 comments:

  1. What are the differences and similarities between mutuum and commadatum?

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  2. The differences are:
    Mutuum 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.

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