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to do a thing gratuitously, and omitting altogether to do it. The civil law did undoubtedly contain such a principle; and Pothier, in his elaborate treatise on the contract of mandatum, a adopts the powerful reasoning and very sound maxims of the civil law on the subject of the responsibility of the mandatary.b But the English law, as has been abundantly shown from the cases already referred to, never carried the liability of the mandatary to the same extent. He is bound to account for the due performance of the trust he assumes upon the principles already stated, and if the bailor sustains damages by his fraud, or gross negligence, or misuser, he must answer for the same. On the other hand if the mandatary bestows the requisite care and diligence, he is justly entitled to indemnity against his necessary expenses and necessary incidental contracts; and so it he sustains loss and injury in the execution of the trust, and of which the service was the cause, the bailor ought to indemnify him, upon principles of moral if not of legal obligation.d
III. Of Commodatum.
This is a bailment, or loan of an article for a certain time to be used by the borrower without paying for the use. This loan for use is to be distinguished from a loan for consumption, or the mutuum of the Roman law. The latter was the loan of corn, wine, oil and other things that might be valued by weight or measure, and the property was transferred. The value only was to be returned in property of the same kind, and the borrower was to bear the loss of them, even if destroyed by inevi
Traité du Contrat de Mandat.
See Dig. 17. tit. 1, and Inst. 3. tit. 27, and Code, 4 tit. 35, on the contract of Mandatum. • Pothier, h. t. n. 61–66.
Pothier, Contrat de Mandat, No. 68–82. Story's Comm. 142–146, 2d edit. Vol. II.
table accident. In the case of the commodatum, or loan
for use, as a horse, carriage, or book, the same iden*574 tical article or thing is to be returned, *and in as
good a plight as it was when it was first delivered, subject however to the deterioration arising from the ordinary and reasonable use of the loan, and which deterioration the lender is to bear.b The borrower has no special property in the thing loaned, though his possession is sufficient for him to protect it by an action of trespass against a wrongdoer. The Roman and the Eng. lish law coincide in respect to the conclusions on this head. The borrower cannot apply the thing borrowed to any other than the very purpose for which it was borrowed ;d nor permit any other person to use the thing loaned, for such a gratuitous loan is strictly a personal favour ;e nor keep it beyond the time limited ;f nor detain it as a pledge for any demand he may otherwise have against the bailor. If the article perish, or be lost or injured by theft, accident or casualties which could not be foreseen and guarded against, or by the wear and tear of the article in the reasonable use of it, without any blame or neglect imputable to the borrower, the owner must abide the loss. The owner cannot require greater
Inst. 3. 15. Dig. 12. 1. 1.2 Id. 44. 7. 1.2 Pothier, Prét a Usage, n. 10. Story on Bailment, p. 193, 194, 2d edit.
o Dig. 13. 6. 19 and 23. Pothier, Prét e Usage, n. 39. Story's Com. 185.
Burton v. Hughos, 2 Bing. Rep. 173. Hurd v. West, 7 Cowen's Rep. 752.
d Dig. 47. 2. 40. Pothier, Traité du Prét a Usage, No. 20, 21, 22. Id. n. 58. 60. Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 915. Wheelock v. Wheelright, 5 Mass. Rep. 104. Story's Com. 161, 162, 2d edit.
e Bringloe v. Morrice, 1 Mod. Rep. 210. Story's Com. 161, 2d edit. f Story's Com. p. 179. 6 Code, 4. 23. 4. Pothier, Prét a Usage, n. 44.
b Inst. 3. 15. 2. Dig. 13. 6. 20. Id. 44. 7. 1. 4. Pothier, Prét a Usage, n. 39. 53. Bells Com. vol. i. p. 255. Noy's Maxims, 91. ch. 43. Jones on Bailment, 49, 50. If the thing be not returned on a loan to use, the burden of proof naturally and justly lies with the borrower to account
care on the part of the borrower, than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and the owner knew him to be such, the circumspection of an experienced rider cannot be required; and what would be neglect in the one, would not be so in the other.a
Pothier says, that the borrower is bound to bestow upon the preservation of the thing borrowed, not merely ordinary, *but the greatest care ; and that *575 he is responsible, not merely for slight, but for the slightest neglect. This was the doctrine of the civil law. And so the law was also declared by Lord Holt, in Coggs v. Bernard ; and the reason is, that this is a loan made gratuitously for the sole benefit of the borrower.b What · is due diligence or neglect, will depend upon the circumstances of the particular case, and the nature of the article loaned, and the character and employment of the borrower. He is not liable for the loss of the thing from the wrongful act of a third person, which he could not foresee or prevent, nor from external and irresistible violence; as if he hires a horse for a journey, and he be robbed of the horse, without any neglect or imprudence on his part. If however, his house should be destroyed by fire, and he saved his own goods, and was not able to save the articles borrowed, without abandoning his own goods ; in that case he must pay for the loss, because he had less care of the article borrowed than of his own
satisfactorily for the loss, or pay the value. Pothier, Traité du Prét a Usage, No. 40. Ibid. des Oblig. No. 620. If the article, a slave for instance, perish through neglect or imprudent conduct, the borrower must pay the value. Nibbett v. White, 7 Louis. Rep. 253.
Jones on Bailment, 49, 50. Pothier, Traité du Prét a Usage, No.49. b Dig. 44. 7. 1. 4. Pothier, Traité du Prét a Usage, No. 48–56. 2 Lord Raym. 915. Story's Com. 164. 2d edit. See, also, Lord Stair's Institutes of the Scotch Law, 1 Inst. b. 1. 11. 9, and which, as Mr. Justice Story observes, includes the substance of the rules concerning the degrees of diligence due from the bailee.
• Dig. 13.6. 19. Pothier, Traité du Prét a Usage, No. 38. 55. 56.
property, and gave the preference to his own. But if his own goods were more valuable than the articles borrowed, and both could not be saved, was the borrower bound in that case to prefer the less valuable articles borrowed? Pothier admits this to be a question of some difficulty; but he concludes, that the borrower must answer for the loss, because he was not limited to bestow only the same care of the borrowed article as of his own; he was bound to bestow the exactest diligence in the preservation of it, and nothing will excuse him but vis
major, or inevitable accident.b The borrower is al*576 so responsible *for the loss of the article even by vis
major, when the accident has been owing to his own imprudence; as if he borrows a horse to ride, and he quits the ordinary and safe road, or goes at a dangerous hour of the night, and is beset by robbers and loses the horse, he is liable. He is liable also, for inevitable accident, if he had borrowed a horse of his friend in order to save his own, and concealed from his friend that he had one of his own equally proper for the occasion; as if a person borrowed of his friend a cavalry horse, to use in a battle, and concealed from him that he had one of his own, and the borrowed horse should be killed, he must pay for it, for this was a deceit practised upon the lend
• Pothier, Traité du Prét a Usage, No. 56. This is the rule adopted in the Code Napoleon, art. 1882.
Ibid. No. 56. Mr. Justice Story (Story's Com. 169—175,) questions The solidity of Pothier's conclusion in this case, though it be backed by the positive text of the civil law. The reasoning in Pothier is rather refined and artificial, and the plain common sense and justice of the case, and the moral feelings and instincts which arise out of it, would dictate, that the most valuable articles be first snatched from the flames, when a choice was presented. If, however, the difference in value between his own article and the one borrowed be not broadly and distinctly marked, it is safest and most politic to adhere to the rule of the civilians, (which is adopted in the Code Napoleon, art. 1882, and Code of Louisiana, art. 2817,) in order to guard against the neglects and temptations which self interest might suggest.
e Pothier, Traité du Prét a Usage, No. 57.
er; and nothing would exempt him from this responsibility but the fact that he had previously disclosed to his friend the truth of the case, and his disinclination to hazard his own horse.& The borrower is also responsible for loss by inevitable accident, if he has detained the article borrowed beyond the time he ought to have returned it; for the loss is then to be presumed to have arisen from his breach of duty.b If, in the mean time, the lender has been put to expense from the want of the article borrowed, there are opinions that the borrower is bound to indemnify him for such expenses. But if the borrower was not in default in retaining the article, the better reason and equal authority would exempt him from that responsibility.c
The ordinary expenses attendant on the thing loaned gratuitously, are borne by the borrower; but if the expenses *were extraordinary, and arose from the *577 inherent infirmity of the thing, or were requisite for its preservation, without any neglect on the part of the borrower, the lender must bear them, and the borrower has a lien on the article for his reimbursement of such extraordinary expenses.d
I have taken these explanations of the degrees of responsibility, in the case of a borrower for use without reward, principally from Pothier. In Coggs v. Bernard, e Lord Ch. J. Holt lays down the same rules precisely; and he took them from Bracton, who borrowed them from the civil law, the great fountain from whence all the valuable principles on the subject of these various kinds of bailments have been extracted. It was reserved, however, for Pothier to methodize, vindicate, and illustrate
• Pothier, Ibid. No. 59.
b Ibid. No. 60. Jones on Bailment, 70. French Code Civil, art. 1881. Code of Louisiana, art. 2870. c Pothier, No. 55. Story's Comm. 179.
a Dig. 13. 6. 18. 2. Pothier, Traité du Prét a Usage, No. 81, 82, 83. Story's Com. p. 179. 186, 187. 2d edition.
2 Lord Raym. 909.