[POMPONIUS libro undecimo ad Sabinum. ] §13.6.13.prIs qui commodatum accepit si non apparentis rei nomine commodati condemnetur, cauendum ei est, ut repertam dominus ei praestet.
[POMPONIUS in the eleventh book on Sabinus.] If the person who received a loan is condemned on account of the loaned thing not being apparent, he must take security that, if it is found, the owner will make it good to him.
§13.6.13.1Si quem quaestum fecit is qui experiendum quid accepit, ueluti si iumenta fuerint eaque locata sint, id ipsum praestabit qui experiundum dedit: neque enim ante eam rem quaestui cuique esse oportet, priusquam periculo eius sit.
If he who received something to be tested made any profit from it, as for example if there were beasts of burden and they were let out for hire, he will make good that very profit to the person who gave them to be tested; for it is not proper that any thing should be a source of profit to anyone before it is at his risk.
§13.6.13.2Si libero homini, qui mihi bona fide seruiebat, quasi seruo rem commodauero, uideamus, an habeam commodati actionem.
If I lend a thing to a free person who was serving me in good faith, as if to a slave, let us see whether I have the action on loan.
nam et Celsus filius aiebat, si iussissem eum aliquid facere, uel mandati cum eo uel praescriptis uerbis experiri me posse: idem ergo et in commodato erit dicendum.
For Celsus the son also used to say that if I had ordered him to do something, I could sue him either on mandate or by the action with prescribed words; therefore, the same must be said in the case of a loan.
nec obstat, quod non hac mente cum eo, qui liber bona fide nobis seruiret, contraheremus quasi eum obligatum habituri: plerumque enim id accidit, ut extra id quod ageretur tacita obligatio nascatur, ueluti cum per errorem indebitum soluendi causa datur.
Nor does it stand in the way that we did not contract with him, who was serving us in good faith as a free person, with the intention of holding him bound; for it often happens that an implied obligation arises outside of what was transacted, as for example when through error what is not due is given for the purpose of payment.