On the contrary, a special accessory contract
would have to be entered into for this purpose. The only question,
then, that can be raised is this: "Is it incumbent on the lender or
the borrower to add expressly the condition of undertaking the risk
that may accrue to the thing lent; or, if this is not done, which of
the parties is to be presumed to have consented and agreed to
guarantee the property of the lender, up to restoration of the very
same thing or its equivalent?" Certainly not the lender; because it
cannot be presumed that he has gratuitously agreed to give more than
the mere use of the thing, so that he cannot be supposed to have
also undertaken the risk of loss of his property. But this may be
assumed on the side of the borrower; because he thereby undertakes and
performs nothing more than what is implied in the contract.
For example, I enter a house, when overtaken by a shower of rain,
and ask the loan of a cloak. But through accidental contact with
colouring matter, it becomes entirely spoiled while in my
possession; or on entering another house, I lay it aside and it is
stolen. Under such circumstances, everybody would think it absurd
for me to assert that I had no further concern with the cloak but to
return it as it was, or, in the latter case, only to mention the
fact of the theft; and that, in any case, anything more required would
be but an act of courtesy in expressing sympathy with the owner on
account of his loss, seeing he can claim nothing on the ground of
right.
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