[ULPIANUS libro uicensimo octauo ad edictum. ] §13.6.5.prSi ut certo loco uel tempore reddatur commodatum conuenit, officio iudicis inest, ut rationem loci uel temporis habeat.
[ULPIANUS, from the twenty-eighth book on the Edict.] If it has been agreed that the loaned object is to be returned at a certain place or time, it is within the duty of the judge to take account of the place or time.
§13.6.5.1Si quis hac actione egerit et oblatam litis aestimationem susceperit, rem offerentis facit.
If anyone brings this action and receives the offered valuation of the litigation, he makes the thing the property of the offeror.
§13.6.5.2Nunc uidendum est, quid ueniat in commodati actione, utrum dolus an et culpa an uero et omne periculum.
Now we must see what comes within the action on loan, whether fraud alone, or also fault, or indeed all risk.
et quidem in contractibus interdum dolum solum, interdum et culpam praestamus: dolum in deposito: nam quia nulla utilitas eius uersatur apud quem deponitur, merito dolus praestatur solus: nisi forte et merces accessit (tunc enim, ut est et constitutum, etiam culpa exhibetur) aut si hoc ab initio conuenit, ut et culpam et periculum praestet is penes quem deponitur.
And indeed, in contracts we sometimes guarantee fraud alone, sometimes also fault: fraud in deposit, for since no utility of it concerns the person with whom it is deposited, fraud alone is deservedly guaranteed; unless by chance a reward has also been added (for then, as has also been established, fault is also shown) or if this was agreed from the beginning, that he with whom it is deposited should guarantee both fault and risk.
sed ubi utriusque utilitas uertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in societate, et dolus et culpa praestatur.
But where the utility of both parties is concerned, as in purchase, in hire, in dowry, in pledge, in partnership, both fraud and fault are guaranteed.
§13.6.5.3Commodatum autem plerumque solam utilitatem continet eius cui commodatur, et ideo uerior est Quinti Mucii sententia existimantis et culpam praestandam et diligentiam et, si forte res aestimata data sit, omne periculum praestandum ab eo, qui aestimationem se praestaturum recepit.
A loan, however, usually contains only the utility of him to whom it is loaned, and therefore more correct is the opinion of Quintus Mucius, who thinks both fault and diligence must be guaranteed, and, if by chance an estimated thing was given, all risk must be guaranteed by him who undertook that he would guarantee the estimation.
§13.6.5.4Quod uero senectute contigit uel morbo, uel ui latronum ereptum est, aut quid simile accidit, dicendum est nihil eorum esse inputandum ei qui commodatum accepit, nisi aliqua culpa interueniat.
But what has occurred through old age or disease, or was snatched away by the violence of robbers, or if any similar thing has happened, it must be said that none of these is to be imputed to him who received the loan, unless some fault intervenes.
proinde et si incendio uel ruina aliquid contigit uel aliquid damnum fatale, non tenebitur, nisi forte, cum possit res commodatas saluas facere, suas praetulit.
Accordingly, even if something occurred through fire or collapse or some fatal damage, he will not be held liable, unless by chance, when he could make the loaned things safe, he preferred his own.
§13.6.5.5Custodiam plane commodatae rei etiam diligentem debet praestare.
Clearly, he must also guarantee the diligent custody of the loaned thing.
§13.6.5.6Sed an etiam hominis commodati custodia praestetur, apud ueteres dubitatum est.
But whether custody is also guaranteed for a loaned slave was doubted among the ancient jurists.
nam interdum et hominis custodia praestanda est, si uinctus commodatus est, uel eius aetatis, ut custodia indigeret: certe si hoc actum est, ut custodiam is qui rogauit praestet, dicendum erit praestare.
For sometimes custody of a slave must also be guaranteed, if he was loaned bound, or of such an age that he stood in need of custody; certainly, if this was agreed, that he who requested the loan should guarantee custody, it will have to be said that he guarantees it.
§13.6.5.7Sed interdum et mortis damnum ad eum qui commodatum rogauit pertinet: nam si tibi equum commodauero, ut ad uillam adduceres, tu ad bellum duxeris, commodati teneberis: idem erit et in homine.
But sometimes even the damage of death belongs to him who requested the loan; for if I loan you a horse so that you might lead him to a country estate, and you lead him to war, you will be held liable on the loan; the same will also be the case with a slave.
plane si sic commodaui, ut ad bellum duceres, meum erit periculum.
Clearly, if I loaned him in such a way that you might lead him to war, the risk will be mine.
nam et si seruum tibi tectorem commodauero et de machina ceciderit, periculum meum esse Namusa ait: sed ego ita hoc uerum puto, si tibi commodaui, ut et in machina operaretur: ceterum si ut de plano opus faceret, tu eum inposuisti in machina, aut si machinae culpa factum minus diligenter non ab ipso ligatae uel funium perticarumque uetustate, dico periculum, quod culpa contigit rogantis commodatum, ipsum praestare debere: nam et Mela scripsit, si seruus lapidario commodatus sub machina perierit, teneri fabrum commodati, qui neglegentius machinam colligauit.
For even if I loan you a plasterer slave and he falls from a scaffold, Namusa says that the risk is mine; but I think this is true only if I loaned him to you so that he might also work on a scaffold; otherwise, if it was so that he might work on level ground, and you placed him on a scaffold, or if it happened through the fault of a scaffold not tied carefully by himself or through the old age of the ropes and poles, I say that the risk, which occurred through the fault of him who requested the loan, he himself ought to guarantee; for Mela also wrote that if a slave loaned to a stonecutter died under a scaffold, the craftsman is held liable on the loan, who tied the scaffold too carelessly.
§13.6.5.8Quin immo et qui alias re commodata utitur, non solum commodati, uerum furti quoque tenetur, ut Iulianus libro undecimo digestorum scripsit.
Nay rather, he who uses the loaned thing otherwise is held liable not only on the loan, but also for theft, as Julian wrote in the eleventh book of the Digests.
denique ait, si tibi codicem commodauero et in eo chirographum debitorum tuum cauere feceris egoque hoc interleuero, si quidem ad hoc tibi commodauero, ut caueretur tibi in eo, teneri me tibi contrario iudicio: si minus neque me certiorasti ibi chirographum esse scriptum, etiam teneris mihi, inquit, commodati: immo, ait, etiam furti, quoniam aliter re commodata usus es, quemadmodum qui equo, inquit, uel uestimento aliter quam commodatum est utitur, furti tenetur.
Finally he says, if I loan you a notebook and you have your debtors' signatures written in it, and I cross this out, if indeed I loaned it to you for this purpose, that it should be secured to you in it, I am held liable to you by the contrary action; if not, and you did not inform me that a signature was written there, you also are held liable to me, he says, on the loan; indeed, he says, also for theft, because you used the loaned thing otherwise, just as he who uses a horse or a garment otherwise than as it was loaned, he says, is held liable for theft.