Although the
promiser, therefore, thought- as may easily be supposed- that he could
not be bound by his promise in any case, if he "rued" it before it was
actually carried out, yet the court assumes that he ought expressly to
have reserved this condition if such was his mind; and if he did not
make such an express reservation, it will be held that he can be
compelled to implement his promise. And this principle is assumed by
the court, because the administration of justice would otherwise be
endlessly impeded, or even made entirely impossible.
38. II. The Contract of Loan. (Commodatum).
In the contract of commodate-loan (commodatum) I give some one the
gratuitous use of something that is mine. If it is a thing that is
given on loan, the contracting parties agree that the borrower will
restore the very same thing to the power of the lender, But the
receiver of the loan (commodatarius) cannot, at the same time,
assume that the owner of the thing lent (commodans) will take upon
himself all risk (casus) of any possible loss of it, or of its
useful quality, that may arise from having given it into the
possession of the receiver. For it is not to be understood of itself
that the owner, besides the use of the thing, which he has granted
to the receiver, and the detriment that is inseparable from such
use, also gives a guarantee or warrandice against all damage that
may arise from such use.
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