Commodatum (Loan for Use)

A commodatum was a loan of property for the use of the borrower. It arose whenever one person (the commodator) delivered a thing to another (the commodatorius) for the latter's gratuitous use. It was a contract of praetorian origin and a bona fidei negotium both parties being bound to do everything required by good faith.

The contract was made by the mere delivery of the property for the contemplated use. The borrower did not become the owner of the property, he got merely the right as against the lender, to the use of the property. Hence a person not the owner of the property — even a thief — could give a thing in commodatum. The transaction was gratuitous if the borrower was to pay for the use, it was a contract of hire.

The borrower was required to exercise the highest care (omnis or exacta diligentia), to take as good care of the thing lent as a good paterfamilias would bestow, not merely such care as the particular borrower usually bestowed upon his own affairs.

If the thing was lost or injured through any fault of his own, he was liable, but not for loss or injury by accident or from causes beyond his control. For loss by theft the borrower was liable, for it was considered that such loss could be prevented by due care, but the borrower was not responsible for loss by robbers. But if the borrower used the thing for a different purpose than that for which it was borrowed, he was liable for loss or injury even without his fault. Thus if one borrowed plate to be used at a supper, and instead took it on a journey and it was stolen by robbers, the borrower was liable. And a borrower who thus made a different use of the thing borrowed was also liable to an action for theft unless he srtpposed that the lender would have consented to such different use. For default by the borrower the lender had an actio commodati directa.

The borrower derived all the benefit from the contract, and ordinarily the lender was under no special duty to him, but after delivering the thing to the borrower he was obliged to let him enjoy the use of it as agreed. He had also to pay extraordinary expenses in caring for the thing, but the borrower had to pay ordinary expenses, such as food or trifling medical expenses for slaves borrowed.

The lender was liable to the borrower for fraud (dolus) or gross negligence (culpa lata). Thus if a man lent vessels to hold wine or oil knowing that they were leaky, he was liable for the value of the wine or oil lost. The borrower's rights were enforced by an actio conimodati contraria.

It will be observed that the English law relating to gratuitous loan for use, which was formerly known by the Roman name of commodatum, is practically the same as the Roman law.

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Effects of Marriage with Manus

By the strict marriage the wife passed into the marital power of her husband {in manum viri). The manus or marital power may be regarded as a particular form of the patria potestas. An uxor in manu was a member of her husband's household. Although called a materfamilias, this term did not have a meaning corresponding to the term paterfamilias. The wife was not the head of the family. She stood legally in the position of a daughter {in loco filiafamilias) of her husband. If she had children she was regarded as a sister of her own children. The relation of husband and wife, both as regards the wife's person and her property, was governed by the same rules of law as governed the relation of father and child. The law of husband and wife may, therefore, be considered as merely a particular branch of the law of parent and child. The husband had, in general, the same power over the person of his wife in manu as the father had over his child. Anciently, it may be suppo...
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Slavery by Birth

The children of a female slave became the slaves of her master. The status of the father as free or slave was immaterial. The general rule governing the determination of the status of a child, whether as free or slave, or as citizen or alien, was as follows : Children born in lawful wedlock had the status of the father at the moment of conception, children born out of wedlock had the status of the mother at the moment of birth. Hence if the father of a child of a lawful marriage was free at the moment of conception, the child was free although the father should subsequently lose his freedom. As to children born out of wedlock, the general rule, as above stated, was that it was the status of the mother at the moment of birth that determined the status of the child. If the mother was free at the moment of conception but a slave at the moment of birth, the child was a slave, and conversely. This was the earlier law, but the rule was modified in the interest of liber...
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Mandate (Mandatum)

Mandate (mandatum) was a contract by which one person mandatarius agreed to do something gratuitously at the request of another mandator , who, on his part, agreed to save him harmless from all loss in so doing. The mandator was said to give the mandatory a mandate, or commission to do the act in question. The term mandatum is sometimes translated "agency", but this translation is misleading. The mandatory is not properly described as an agent. Mandate was the only gratuitous consensual contract; the others, sale, hiring, and partnership, all being founded upon a consideration. Like the others, it was a bona fidei negotium , and bound the parties to do all that was required by good faith. It was of the essence of the contract of mandate that the mandatory should act gratuitously. But while this was true in a strict legal sense, it was allowed to agree upon a sum to be paid as a honorium , or salary, which might be recovered only by a special action and not b...
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