used at the will or discretion (al arbitrio) of the person who lends, and then it is called precarious loan (precario). § 1. Commodato is a sort of loan that men make to one another, by which the receiver or borrower is to be benefited for a certain time, L. 1. tit. 2. P. 5. [L. 1. tit. 2. P. 5.] "Commodato" may be made, 1st, Gratuitously, and for the advantage only of the receiver, as when a horse is lent, &c. 2d, For the utility or advantage equally of the lender, which will be always the case when the thing lent serves also the lender. 3d, When the thing is lent more for the honor and satisfaction of the lender than of the borrower, of which kind is the loan of a person's clothes or jewels to the wife, in order to appear more elegant, L. 2. tit. 2. P. 5. [L. 2. tit. 2. P. 5.] Hence are deduced these three axioms, 1st, That "commodato" is made for a certain and determinate use. 2d, That the same thing which is lent must be returned." 3d, That this contract is, from its nature, advantageous to the borrower. From the first axiom it results, 1st, That until the use or the time appointed for which it was lent be completed, the thing cannot be demanded; because until then the borrower is not obliged to return it, L. 9. tit. 2. P. 5. [L. 9. tit. 2. P. 5.] 2d, That the time or the use for which it was intended having been completed, it ought to be restored to the owner or heir of the lender, without its being allowed to be retained by way of set off, (compensacion,) or on account of debt, L. 4.28 tit. 2. P. 5. [L. 4. tit. 2. P. 5.] 3d, That if it is not restored to the owner, the borrower is liable for the expenses, damages, and prejudices which he occasioned by the delay, L. 9. tit. 2. P. 5. [L. 9. tit. 2. P. 5.] [171] From the second axiom it arises, 1st, That every thing corporeal or incorporeal, personal or real, belonging to another,29 or to one's self, may be lent, L. 2. tit. 2. P. 5. ad fin. [L. 2. tit. 2. P. 5.] 2d, That the things which are consumed by use are only lent for pomp and luxury, of which kind L. 2. tit. 2. P. 5. [L. 2. tit. 2. P. 5.] makes mention. 3d, That the borrower ought to take more care of the thing lent than of his own, which is called being liable for all 25 See Wood's Inst. Civ. Law, book 3. ch. 1. p. 215. 27 The text says, the thing lent must be returned "en la misme especie :" but it is thus translated, to convey what is thought to be the meaning of the text; for one of the differences between a commodatum and a mutuum, is, it is apprchended, that with regard to commodatum, the same thing is to be returned, and not the same quantity or quality as in a mutuum. See L. 2. tit. 1. P. 5.; and L. 9. tit. 2., ibid. See also the following title in the text; and such is the case by the civil law. See Wood's Inst. C. L., p. 215., cited in the preceding n. 26. 28 It is supposed this law is erroneously cited for L. 9. ibid., before quoted, which con tains an exception to the general position in the text, in the case of the debt having been contracted for the benefit of the commodatum, after it was lent, and the expense laid out on it was necessary. 29 With such person's authority, must be understood, it is presumed. See L. 2. tit. 1. P. 5. Palacios, in a note on this, observes that, L. 2. tit. 1. P. 5. only permits the loan by a person of a thing which is his own; and that L. 2. tit. 2. P. 5., does not permit the loan by one of another's property. It is conceived, that the text meant to convey by the expression used, no more than is stated in the first part of this note. fault, even "levissima;" but not for accidents (acasos) nor supernatural events, except they should happen after the expiration of the time for which the thing was lent, or it should have been applied to another use or purpose than that for which it was lent,30 L. 3. tit. 2. P. 5. [L. 3. tit. 2. P. 5.] 4th, That the thing ought to be sent to the owner by a trusty and confidential person; because, otherwise, the borrower is responsible for the damage or loss;31 but if it be delivered to any one who was sent for the purpose by the owner, it is at his risk from the instant of its delivery, L. 4. tit. 2. P. 5. [L. 4. tit. 2. P. 5.] 5th, That if a thing be lent to many, each is responsible for his part, unless each binds himself for the whole. Also the heirs of the borrower, if, by their fault, they shall lose it, shall pay pro rata, L. 5. tit. 2. P. 5. [L. 5. tit. 2. P. 5.] 6th, That if the value of the loan hath been paid in consequence of its being considered lost, and it shall afterwards be found by the owner, he must deliver it to the borrower, or may retain it on returning the price or value which he shall have received; but if a third person should find it, the borrower has his action to recover it from him, L. S. tit. 2. P. 5. [L. 8. tit. 2. P. 5.] 32 From the third axiom it is deduced, 1st, That the owner must make known the vice or defect of the thing lent33, L. 6. tit. 2. P. 5. [L. 6. tit. 2. P. 5. 2d, That the borrower must support, at his own expense, the beast which may be lent to him, and if it shall fall sick without his fault, he is entitled to recover what he shall expend in its cure, L. 7. tit. 2. P. 5. [L. 7. tit. 2. P. 5.] 3d, That if the owner is equally benefited, by the thing lent, the borrower is only liable for " culpa leve;" which is understood of commodato, or loans of the second kind:34 and with respect to the third kind, the borrower is liable for the damage which may arise from dolo or malice (malicia).35 30 Or unless there should have been a special covenant to the effect. Se L. 3. tit 2. P. 5. 31 See Greg. Lop. Gl. 1. on L. 4. tit. 2. P. 5., cited. 32 Or if it hath been lost by the fault of their ancestor or testator. 33 Such as the dishonesty of a slave, &c.: for concealment by the owner or lender, with knowledge of the vice, &c., renders him responsible to the borrower for the consequences of dishonesty, &c. Sec L. 6. tit. 2. P. 5. cited, and Greg. Lop. Gl. 1. and 2. ibid. 34 Sce pp. 179, 180, ante. 36 Culpa lata. TITLE XI. OF LOAN (EMPRESTITO OR MUTUO), AND OF DEBTS (DEUDAS). CAP. 1. THE other species of loan of which we have to treat, is emprestito, which may be considered as a thing that is lent at the request of the borrower, L. 1. tit. 1. P. 5. The thing lent must be of a quality which can be weighed, measured, or counted. Wherefore the contract of emprestito, is that by which the thing that is consumable [173] (cosa fungible), is transferred to the dominion of another under the obligation or condition of returning the like quantity in kind' as is deduced from Ll. 1. and 2. tit. 1. P. 5. [Ll. 1. and 2. tit. 1. P. 5.] Hence it is that "mutuo" can only be made of those things which consist of number, weight and measure. 2d, That this contract can only be valid on delivery of the thing. 3d, That it has the quality of alienation (enagenacion). 4th, That the debtor is bound to return to the creditor, an equal value or quantity of the same thing as that received or that which might be agreed on. From the first principle it follows, 1st, That the only objects of “emprestito” or mutuo2 can be money, oil, corn, &c., Ll. 1. 2. and 8. tit. 1. P. 5. [Ll. 1. 2. and 8. tit. 1. P. 5.] 2d, That the other things belong more properly to "commodato," L. 1. tit. 1. P. 5. [L. 1. tit. 1. P. 5.] From the second principle it results, 1st, That the pact or promise to lend does not make the person liable, who declares to have received the thing, unless two years pass after the execution of the instrument of writing, containing such declaration, or if it should be proved by the lender, that he really delivered the thing, although in the present day the renunciation of the exception non numerata pecunia, L. 9. tit. 1. P. 5. [L. 9. tit. 1. P. 5.] is an usual clause in deeds. 2d, That the obligation of the "emprestito," is binding or complete, inasmuch, or as far as delivery is made of the thing by its owner, or by another in his name, L. 2. tit. 1. P. 5. [L. 2. tit. 1. P. 5.] From the third principle it is inferred, 1st, That the property 1 See Wood's Inst. Civ. L. p. 212, 213, before referred to. 3 Palacios very justly observes that it is necessary to refer to L. 9. tit.. 5. P. 5., cited further or in the text, for a proper understanding of what is desired to be conveyed by the text. The substance of which is, that if a person, under the expectation of receiving a promised loan, executes a deed or instrument acknowledging the receipt of such promised loan, which, in point of fact, hath not been paid or delivered, and allows two years to pass by without claiming to be relieved against his act or to have the instrument delivered up or cancelled, if he be sued, after the expiration of that time, on the deed, for the repayment or return of the thereby admitted loan, he will be liable for the amount. nunciation in the deed of the exception non numerata pecunia, mentioned in the succeedng sentence of the text, produces the like liability, even though the plea of non-receipt of such promised loan should be preferred before the expiration of the two years. The re (senorio) of the thing lent (emprestito) passes to the person who receives it, L. 2. tit. 1. P. 5. [L. 2. tit. 1. P. 5.] 2d, That the debtor or borrower remains bound or liable for the thing in whatever way, or by whatever cause it may be lost or destroyed, L. 10. tit. 1. P. 5., [L. 10. tit. 1. P. 5.] by reason of its being at his own risk. 3d, That those persons may lend who are able to alienate their property. From the fourth principle it arises, 1st, That a loan can be made to the person only who is capable of being bound, or of binding himself; but if the loan "emprestito," should be made to a church, city, town, to the king, or to another in his name, in order that either may be bound or liable, it is necessary for the creditor to prove the loan to have been converted to their benefit, L. 3. tit. 1. P. 5. [L. 3. tit. 1. P. 5.] But if the person sent in the name of the king demands a credit in virtue of a sufficient power which he may produce for the purpose, the king ought to pay the debt, whether it be or not to his advantage, L. 3. tit. 1. P. 5. [L. 3. tit. 1. P. 5.] 2d, That the child under the paternal power (el hijo de familias) cannot take any thing upon credit, L. 22. tit. 11. lib. 5. Rec., [L. 17. tit. 1. lib. 10. Nov. Rec.] which furnishes a clue to come at the right or true meaning of Ll. 4. 5. and 6. tit. 1. P. 5. [Ll. 4. 5. and 6. tit. 1. P. 5.] 3d, That one who conducts a shop, or business in the name of another, obliges [ 174 ] or binds his principal for what he borrows by his authority or order, for the benefits of the business or concern, L. 7. tit. 1. P. 5. [L. 7. tit. 1. P. 5.] 4th, That the thing lent ought to be returned at the time, place, and in the kind agreed upon; and if no time hath been expressed, restitution must be made within ten days, Ll. 2. and 8. tit. 1. P. 5. [Ll. 2. and S. tit. 1. P. 5.;] and if the payment hath been. made in money, the thing must be valued if it should not be otherwise agreed on, according to what it should be worth, in the place and at the time it shall be sued for, L. S. tit. 1. P. 5. [L. 8. tit. 11. P. 5.] Cap. 2. The obligation of loan (emprestito) and of every other debt is extinguished or discharged, 1st, By payment which is made to him who is to receive it, so that he is paid for it, L. 1. tit. 14. P. 5. [L. 1. tit. 14. P. 5.] § 1. Hence it is, 1st. That whoever pays, discharges the obligation, L. 2. tit. 14. P. 5. [L. 2. tit. 14. P. 5.] 2d, That payment should be made in the manner it was agreed upon; but if the debtor is not able to pay the same thing he promised, he shall pay with other things, obtaining, therefor, the sanction of the judge, L. 3. tit. 14. P. 4 Palacios says that the effect, if any credit or loan should be given or advanced, is, that no one could demand or recover it, neither from the minor, nor the person to whose power such child might be subject. He is borne out in this position by L. 17. tit. 1. lib. 10. Nov. Rec. which, in effect, seems to subvert or repeal all the provisions in Ll. 4. 5. and 6. tit. 1. P. 5., respecting the liability of such minors, &c. See those laws, and also L. 17. tit. 1. lib. 10. Nov. Rec. 5 If for such benefit the principal is liable, even in the absence of any authority or order. Sec L. 7. tit. 1. P. 5., cited. Or without it, if the creditor should consent, L. 3. tit. 14. P. 5., cited. 5. [L. 3. tit. 14. P. 5.] 3d, That the payment which is made by a debtor, or by another in his name, even though it be against the will of the debtor, is valid, L. 3. tit. 14. P. 5. [L. 3. tit. 14. P. 5.] 4th, That it must be made to the creditor or to his attorney, Ll. 5. and 7. tit. 14. P. 5. [Ll. 5. and 7. tit. 14. P. 5.] 5th, That if the creditor be a minor, payment must be made to him under the authority or sanction of the judge, in order that the debt may be extinguished or discharged, L. 4. tit. 14. P. 5. [L. 4. tit. 14. P. 5.] 6th, That the payment being lawfully made, the debtor is exonerated and discharged, as are also his sureties, mortgages and heirs, L. 1. tit. 14. P. 5. 7th, That if a person be indebted on many accounts, or owe many debts to one person, and pay him something, it is to be understood (though not expressed) that he pays an equal proportion in discharge of all the debts, unless that one of them be more onerous (mas gravosa)s than the others; in which case the payment is understood to be made in discharge of it, L. 10. tit. 14. P. 5. [L. 10. tit. 14. P. 5.] The mode in which payment should be made to the father, to the monk, &c., is treated by Salgado Labyrint. cred., Part 1. cap. 27. It often happens that a person pays what is not due through error or ignorance. These payments are null, and what has been paid must be returned, upon proving the error or mistake, L. 28. tit. 14. P. 5. [L. 28. tit. 14. P. 5.] This proof must be given by the plaintiff, the defendant confessing the payment; and if he deny it, it will be [175] sufficient for the plaintiff to prove having made the payment, in order to be entitled to recover.10 But if the plaintiff should be a minor under twenty-five years, a woman, a simpleton (sencillo), a laborer, or military person, and the defendant acknowledge the payment, the latter must prove it to have been lawfully made, L. 29. tit. 14. P. 5. On all that has been said, it is established, 1st, That whoever paid what he knew he did not owe, cannot recover it back, unless he were a minor, L. 30. tit. 14. P. 5. [L. 30. tit. 14. P. 5.] 2d, That what is paid through ignorance of law, cannot be recovered back, because we are all obliged to know the laws of the kingdom," from the study of which only military persons, women, laborers, 13 minors, &c., are exempted, L. 31. tit. 14. P. 5. [L. 31. tit. 14. P. 5.] 3d, That if payment is made of a debt which was not justly due in consequence of a sentence of the judge, it cannot be recovered back, unless it be Palacios says, provided all should be equally long due, and of the same class; for if not, the payment should be applied in discharge of that which was first due, and he cites Greg. Lop. Gl. 4. L. 10. tit. 14. P. 5. 8 By reason of the existence of a penalty for non-payment of the debt bearing interest, &c. See L. 10. tit. 14. P. 5., cited. • On account of his son. 10 Unless the defendant should prove that the payment was made because it was justly due to him, L. 29. tit. 14. P. 5. 11 L. 3. is erroneously cited in the original 12 See also L. 20. tit. 1. P. 1. 13 The law cited, L. 31. tit. 14. P. 5., says, simple laborers. |