It would be otherwise, however, if, on asking the use of an
article, I discharged myself beforehand from all responsibility, in
case of its coming to grief while in my hands, on the ground of my
being poor and unable to compensate any incidental loss. No one
could find such a condition superfluous or ludicrous, unless the
borrower were, in fact, known to be a well-to-do and well-disposed
man; because in such a case it would almost be an insult not to act on
the presumption of generous compensation for any loss sustained.
Now by the very nature of this contract, the possible damage (casus)
which the thing lent may undergo cannot be exactly determined in any
agreement. Commodate is therefore an uncertain contract (pactum
incertum), because the consent can only be so far presumed. The
judgement, in any case, deciding upon whom the incidence of any loss
must fall, cannot therefore be determined from the conditions of the
contract in itself, but only by the principle of the court before
which it comes, and which can only consider what is certain in the
contract; and the only thing certain is always the fact as to the
possession of the thing as property. Hence the judgement passed in the
state of nature will be different from that given by a court of
justice in the civil state.
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