The contract of Commodatum under Maltese law

Abstract

Introduction : Commodatum is a contract which has its own peculiar characteristic features making it a contract different and independent from other similar contracts and it is precisely the aim of this thesis to give a thorough examination of such features. Chapter 1 : The purpose of this chapter is to embark on a historical journey in order to highlight the legal measures intended to regulate the contract of commodatum throughout the years, that is, from the time of the Order of St John to date. A fairly detailed examination of the contract of commodatum under Roman law is carried out particularly with a view to facilitate the appreciation of such contract as it stands under Maltese law. Chapter 2 : The contract of commodatum, like any other contract, has its own juridical nature, that is, those elements which contribute to the peculiarity of such contract. The contract of commodatum is a real contract in that it is concluded by the delivery of the thing lent by the lender to the borrower. It is an imperfectly bilateral contract since it gives rise to obligations on the part of both parties but they are not reciprocal obligations. However, this is not free from criticism and in fact both characteristics have been exposed to great objections. Moreover, the contract of commodatum is essentially gratuitous in that the lender grants the temporary use of the thing to the borrower against no payment, otherwise it would transmute into another contract. Chapter 3 : In the contract of commodatum the agreement is required as in any other contract. It is indispensable that the parties agree upon a time or a purpose for which the thing is lent because otherwise the relation between them would constitute the contract of precarium and not commodatum. No particular form is required for such agreement. Since commodatum is a real contract it can only be concluded through the delivery of the thing. However, such delivery need not be actual and the agreement would be enough for the conclusion of the contract of commodatum if the borrower happens to be already in possession of the thing by any other title. In commodatum, unlike in mutuum where delivery transfers ownership, delivery only transfers detention and ownership and possession remain with the lender. In commodatum, only the use of the thing is granted to the borrower and the lender retains any other right which he had prior to the loan. The parties must both be capable of contracting. Since in commodatum delivery only transfers detention, the lender need not be the owner; however, he must himself have the detention of the thing. The borrower can be any person except the owner of the thing lent, unless such owner is not a full owner. The thing forming the object of the contract of commodatum must be in commercium, non-fungible and non consumable. However, a consumable thing can form the object of such contract if the thing is lent not for the use for which it is intended by its nature but for a special use agreed upon by the parties by which the thing is not consumed. Chapter 4 : In the contract of commodatum, the borrower does not only have a right to use the thing lent gratuitously but he also has various obligations to perform. The principal obligation in the contract of commodatum is the obligation of the borrower to restore the thing lent to the lender. Moreover, the borrower is bound to take care of and preserve the thing borrowed as a bonus paterfamilias and to apply the thing to the use for which it is intended by its nature or by agreement. These are accessory obligations. With regard to the lender, although he procures a gratuitous advantage to the borrower, he still has some obligations to perform. In fact, the lender is bound to allow the borrower to use the thing until the expiration of the agreed time, or, in the absence of an agreement, until it has served the purpose for which it was lent. This is a secondary and implicit obligation. Moreover, the lender is also bound to reimburse the extraordinary, necessary and urgent expenses incurred by the borrower for the preservation of the thing and to make good the damages caused by defects in the thing lent if he knew of such defects and did not warn the borrower. Such obligations have an eventual character. Chapter 5 : The contract of commodatum is extinguished on the expiration of the agreed time, or, if no time for the duration of the loan has been agreed upon, when the thing has served the purpose for which it was lent. This is what distinguishes such contract from the contract of precarium in which the lender has the power to take back the thing lent when he pleases. However, the said rule is subject to exceptions and there are cases where the lender in the contract of commodatum can take the thing back even before the expiration of the time agreed upon, or, in the absence of an agreement, before the thing has served the purpose for which it was lent. Conclusion Owing to the socio-economic function of the contract of commodatum, the juridical bond which is formed between the parties is rarely the subject of legal dispute.