1Ulpianus, On the Edict, Book XXVIII. The Prætor says, “Whatever anyone is said to have loaned, I will grant an action for the same.” 1The interpretation of this Edict is not difficult; there is only one thing to be noted, and that is that the party who drew the Edict referred to a loan, while Pacuvius mentioned using something. Labeo says, however, that there is the same difference between a loan and something given to be used, as there is between genus and species; for. movable property may be loaned, but what belongs to land cannot be, although what belongs to the land may be given to be used. But it is also apparent that land may very properly be said to be lent, and Cassius holds the same opinion. Vivianus goes still further, and says that a lodging can be lent. 2Parties under the age of puberty are not liable to an action on a loan for use, since a loan of this kind cannot exist with reference to a ward without the authority of his guardian; and this principle is applicable to such an extent that even if, after he reaches puberty, the boy commits fraud or is guilty of negligence, he will not be liable to the action, because in the beginning the loan was inoperative.

2Paulus, On the Edict, Book XXIX. Nor should an action on a loan for use be granted against an insane person, but an action for production should be granted against both; so that, when the property is produced, a suit may be brought for its recovery.

3Ulpianus, On the Edict, Book XXVIII. It seems to me, however, that if a ward is pecuniarily benefited, an equitable action on the loan should be granted against him, according to a Rescript of the Divine Pius. 1If the article lent is returned, but is returned deteriorated, it will not be held to be returned at all because it has been deteriorated, unless the loss is made good; for an article is properly said not to be returned, if it is returned in a deteriorated condition. 2In this action, as in other bona fide actions, the same oath shall be taken with reference to the claim, and so far as the value of the property is concerned, the time must be considered when the case was decided; although, in strict law, the time when issue was joined is that which must be taken into consideration. 3The heir of the party who received the loan can be sued for the same share which he has in the estate, unless he should happen to have the power to return the entire property, and does not do so; for then judgment will be rendered against him for the whole amount, since this would be in accordance with the decision of a good judge. 4Where a loan is made to a son under paternal control or a slave, the action must only be brought for the peculium, but the creditor can have a direct action also against the son himself. Moreover, if the party made the loan to a female slave or to a daughter under paternal control, an action De peculio is the only one that could be brought. 5The father or the owner will not have judgment rendered against him solely on account of the wrongful act of either the son or the slave, as fraud only on the part of the father or owner himself will be considered; a distinction which is made by Julianus, with reference to the action on pledge, in the Eleventh Book. 6There can be no loan of an article which is consumed by use, unless the person borrowed it for the purpose of pomp or ostentation.

4Gaius, On Verbal Obligations, Book I. Loans of money are frequently made for the purpose of enabling them to take the place of payment.

5Ulpianus, On the Edict, Book XXVIII. Where an agreement is made that the article lent shall be returned at a certain place or time, it is the duty of the judge to take into consideration the place or time mentioned. 1Where anyone brings this action, and accepts an estimate of the damages which is offered, he makes the article loaned the property of the party who tenders the money. 2We must now examine what it is that is to be taken into consideration in an action on loan for use, whether fraud or negligence, or every kind of risk; and, indeed, in contracts we are sometimes guilty of fraud and sometimes of negligence; of fraud in the case of deposit, because, as no benefit will be derived by the party with whom the property is deposited, it is reasonable that only fraud should be considered, unless where compensation happens to be made, for then (as has been enacted), negligence is included; or where it was agreed upon in the beginning that the party with whom the article was deposited should be responsible for both negligence and accident. Where, however, the advantage of both parties was concerned in a case of sale, hire, dowry, pledge, or partnership, responsibility attaches for both fraud and negligence. With reference to a loan, the entire advantage which accrues is generally that of the party to whom the property is lent; and therefore the opinion of Quintus Mucius, who thought that the party must be liable for negligence, and must also use diligence, is the more correct one. 3And if the property had been appraised before it was delivered, the entire risk must be assumed by him who agreed to be responsible for the amount of the appraisement. 4But where deterioration occurs, either through old age or disease, or where the property is stolen by robbers, or anything of this kind takes place; it must be said that the party who received the loan is not to be blamed for any of these things, unless some negligence occurred on his part. Hence, if any damage resulted through fire or the fall of a building, or any inevitable loss took place, the party will not be liable; unless, when he could have saved the property which was lent, he preferred to save his own. 5It is beyond question that he must use diligent care with reference to the property loaned. 6But whether he must use this care, where a slave has been loaned, was doubted by the ancient authorities; for sometimes a watch must be kept upon a slave, as where he is chained when lent, or where his age requires that he should be guarded; but if it was certain that the understanding was that the party who asked for him should guard him, it must be held that this should be done. 7Sometimes, however, the loss by death must be borne by the party who asked for the loan; since if I should lend you a horse for you to take to your villa, and you take it to war, you will be liable to an action on loan; and the same rule applies to the case of a slave. It is clear, however, that if I lent the horse to you in order that you might take it to war, the risk would be mine, for Nanusa says if I lend you a slave to plaster a wall, and he falls down from a scaffold, the risk is mine. I think, however, that this is true only where I lent him to you for the purpose of working on a scaffold; but if he should do his work on the ground, and you caused him to get up on a scaffold; or if, through some defect in the latter which was not built properly, even though not fastened by the party in question, or it happened through the age of the ropes or poles; I say that the party himself who requested the loan, must be responsible for the accident which occurred through his negligence. Mela stated that if a slave was lent to a stone-cutter and was killed by the fall of a scaffold, the artisan is liable to an action on loan, because he built the scaffold in a careless manner. 8Moreover, where a person uses the article lent to him in some other way than was intended, he is liable not only to an action on loan but also to one on theft; as Julianus states in the Eleventh Book of the Digest. He also says, “If I lend you a blank book and you cause your debtor to write therein a note to secure you, and I then erase this; if I lent the book to you in order that you might be secured, I am liable to you in a counter action.” But if this is not the fact, and you did not inform me that the note was written, you will also be liable to me in an action on loan, and he says you will even be liable to an action on theft also; since you made use of the property loaned in a different way than you should have done, just as anyone is liable for theft if he uses a horse or a garment for a different purpose than that for which it was lent. 9To such an extent must diligence be exercised with reference to property loaned for use, that it must be employed even with respect to whatever follows the property in question; as, for instance, where I lent you a mare which was accompanied by a foal, the ancient authorities held that you were also obliged to use proper care in the treatment of the foal. 10It is evident that sometimes he who asked for a loan will be responsible only for malice displayed with reference to the property borrowed, as, for instance, where anyone entered into an agreement to this effect, or where the party made the loan only for his own benefit; for example, where he made it to his betrothed or to his wife, in order that she might be better attired when she was brought to him; or where the Prætor exhibited games and made a loan to the actors, or someone voluntarily loaned things for this purpose to the Prætor. 11We must now examine in what particular instances an action on loan will be available; and the ancient authorities entertained doubts with reference to cases of this kind. 12I gave you something in order that you might pledge it to your creditor; you gave it in pledge; but you did not redeem it in order to return it to me. Labeo says that in this instance an action on loan will lie, and I think that this opinion is correct, unless I received some compensation, and then the action would be in factum on the contract of leasing and hiring. It is evident that if I give an article in pledge on your account and with your consent, an action on mandate will lie. Labeo also says, very properly, that if I am not guilty of negligence in redeeming the property pledged, but the creditor refuses to return it; you will then have a right of action on the loan only to the extent that I could assign to you my rights of action against him. It will, moreover, be held that I am not guilty of negligence if I have already paid the money, or I am prepared to pay it. It is clear that the costs of the proceedings and any other expenses must, in justice, be paid by the party who received the loan. 13Ad Dig. 13,6,5,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 375, Note 8.If you ask me to lend you a slave with a dish, and the slave loses the dish, Cartilius says that you must assume the risk, since the dish is held to have been lent, and therefore you must also be responsible for negligence with reference to it. It is evident that if the slave takes to flight with the dish, the party who received the loan will not be liable, unless he was guilty of negligence in connection with the flight of the slave. 14If you ask me to furnish a dining-room for you as well as plate for service, and I do so; and then you request that I do the same thing on the next day, and as I cannot conveniently take the silver back to my house I leave it there, and it is lost; what action can be brought, and who must assume the risk? Labeo states with reference to the risk, that it makes a great deal of difference whether I placed someone to guard the property or not, for, if I did so, the risk is mine; but if I did not, the party to whom the property was left is responsible. I think, however, that an action on loan will lie, but that the party with whom the property was left must provide for its safe custody, unless some other arrangement was expressly agreed upon. 15Where a vehicle is lent or hired to two persons, Celsus, the son, says in the Sixth Book of the Digest that the question may arise whether each of them is liable for the entire amount, or only for a part of the same? He states that the entire ownership of anything cannot belong to two persons, nor can they have the entire possession, nor can one party be the owner of a portion of an article, for he can only have partial ownership of the entire article by means of an undivided share. However, the use of a bath, of a portico, or of a field, may belong to each party in its entirety, for I do not enjoy the use of a thing any the less because another also uses it; but where a vehicle is loaned or hired, I do have the use of a part of it, in fact, because I do not occupy the whole space of the vehicle; but he says it is the better opinion that I shall be responsible for fraud and negligence, as well as for diligence and care, with reference to the whole of it; wherefore, the two parties will be considered as joint-debtors, and if one of them, having been sued, pays the damages, the other will be released, and both of them will be entitled to an action for theft:

6Pomponius, On Sabinus, Book V. So that, if either one of them brings suit, the right of action of the other against the thief will be extinguished.

7Ulpianus, On the Edict, Book XXVIII. Therefore the question arises if one of the parties brings the action for theft, should he only be sued for the loan? Celsus says that if suit should be brought against the other, namely, the one who did not bring the action for theft, and he is ready for the former—that is the one who, because of his bringing the action for theft, profited by the article lent—to be sued at his risk, he should be heard, and be discharged from liability. 1Ad Dig. 13,6,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 299, Note 8.If the lender has a right of action against the other joint-debtor under the Lex Aquilia, it should be considered whether he should not assign it, if the other had committed some damage which the party sued may be compelled to make amends for in an action on loan; since, even if the lender had a right of action against him under the Lex Aquilia, it is perfectly just that, when he brings suit on the loan, he should release the other right of action; unless someone might say that by instituting proceedings under the Lex Aquilia he will recover less than he recovered on account of the loan; and this appears to be reasonable.

8Pomponius, On Sabinus, Book V. We retain both the possession and the ownership of property lent for use.

9Ulpianus, On the Edict, Book II. For no one, by lending anything, makes it the property of the party to whom he lends it.

10The Same, On Sabinus, Book XXIX. Where a man who has received anything as a loan only uses it for the purpose for which he borrowed it, he will certainly not have to pay anything if he renders the article in no respect worse, through his own negligence; for if he does render it worse through his negligence, he will be liable. 1If I give an article to some one to enable him to examine it, the question arises whether he occupies the same legal position as one to whom property is lent? If, indeed, I gave it to him on my own account, because I wished him to ascertain its value, he will only be responsible to me for fraud; but if I gave it to him on his own account, he will also be responsible for its safe-keeping, and hence he will be entitled to an action for theft. But if the article is lost while it is being returned, and I had directed him as to the party by whom he should return it, the risk will be mine; but if he committed it to the care of some one whom he himself selected, he will also be responsible to me for negligence, if he received it on his own account;

11Ad Dig. 13,6,11BOHGE, Bd. 1 (1871), S. 253: Haftung aus der Ueberweisung eines Arbeiters zu einer nicht übernommenen Leistung.ROHGE, Bd. 4 (1872), S. 217: Liberation eines Schuldners ohne dessen Wissen durch Zahlung bez. Angabe an Zahlungsstatt, Novation eines Dritten.Paulus, On Sabinus, Book V. Because he did not select a suitable person in order that it might be carried securely.

12Ulpianus, On Sabinus, Book XXIX. But if he received it on my account, he will be responsible only for fraud. 1A slave who was sent to ask for an article which had been loaned, ran away after he had received it. If his master had directed that it should be given to him, he must sustain the loss; but if he sent the slave for the purpose of notifying the borrower to return the article lent, the party to whom it was lent will be responsible for the loss.

13Pomponius, On Sabinus, Book XI. Where a person who received a loan has judgment rendered against him in an action on loan, on the ground that the property had disappeared; security must be furnished him that if the owner finds it, he will deliver it to him. 1Where a party receives something for the purpose of trying it, as, for instance, beasts of burden, and they are hired out by him, and he profits by this use; he must refund the actual amount which he obtained to him who let him have the animals on trial; for no one should be allowed to profit by anything before it is held at his risk. 2Where I lend an article to a free man who has been serving me in good faith as a slave, let us see whether I am entitled to an action on loan against him. Celsus, the son, says that if I had ordered him to do anything, I could proceed against him either by an action on mandate, or by an action for the construction of the contract, and therefore the same rule should apply in the case of a loan. It makes no difference whether, if we contract with a freeman who is serving us in good faith as a slave, we do not do so intending to place him under an obligation, for it frequently happens that a tacit obligation arises in addition to what is intended at the time; as, for instance, where money which is not due is paid by mistake for the purpose of discharging a debt.

14Ulpianus, On Sabinus, Book XLVIII. If my slave lends you an article belonging to me, and you were aware at the time that I was unwilling that it should be lent to you; an action on loan, as well as one for theft, will lie in my favor, and I will be entitled to an action to recover the property on the ground of theft, as well.

15Paulus, On the Edict, Book XXIX. We can lend even the property of others which is in our possession, even though we know that it belongs to another:

16Marcellus, Digest, Book V. So that even if a thief or a depredator lends property he will be entitled to an action on loan.

17Paulus, On the Edict, Book XXIX. In a case of loan, an agreement that the bailee shall not be responsible for bad faith is not valid. 1The counter action on loans can be instituted without the direct action, just as the others which are designated counter actions. 2Where an action on loan is brought on account of an act of the heir, judgment will be rendered against him for the entire amount, even though he may be heir only to a share. 3Just as the making of a loan for use is an act of free will or of kindness, rather than of necessity, so also it is the right of the party who confers the favor to prescribe terms and limits with reference to the same. When, however, this has been done, (that is to say, after the loan has been made), then the prescribing of terms and going back and unseasonably depriving the party of the property loaned, not only interferes with the kindness displayed, but also with the obligation created by giving and receiving the property. For the transaction is participated in by both parties, and therefore rights of action arise on both sides; so that it is apparent that what was originally an act of generosity and good will is changed into mutual obligations and civil rights of action, as happens in the case of a party who has begun to attend to the business of someone who is absent; for he cannot allow the business to be neglected with impunity, since, if he had not undertaken it, perhaps someone else would have done so, for the assumption of a mandate depends upon the will, but to execute it is a matter of necessity. Therefore, if you lend me tablets in order that my debtor may give me security, you cannot properly demand that they be returned at an improper time; for if you had refused to lend them, I would either have purchased others, or have obtained witnesses. The same rule applies where you lent me timbers with which to prop up a house, and then removed them, or even knowingly lent me some which you knew to be decayed; for we should be benefited, and not deceived when a favor is granted. In instances of this kind it must be held that the counter action can also be brought. 4Where two articles have been lent, Vivianus states that the action on loan can properly be brought for either of them, and what Pomponius states would seem to be true, if they are separate; for where a party has lent, for instance, a chariot or a litter, he cannot properly bring an action for separate portions of the same. 5I lost an article which you lent me, and I gave you its value in lieu thereof, and then the article came into your hands. Labeo says that in a contrary action you must either deliver the property to me, or restore to me what you received from me.

18Gaius, On the Provincial Edict, Book IX. Ad Dig. 13,6,18 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 375, Note 8.Where property is lent, the same diligence must be exercised as any very careful head of a household employs with reference to his own property, so that he is not responsible for an accident, except those that cannot be resisted; as, for instance, the deaths of slaves which occur without malice or negligence on his part, attacks by robbers and enemies, the stratagems of pirates, shipwrecks, fires, and the escape of slaves whom it is not usual to keep under guard. With reference to what we have stated concerning robbers, pirates, and shipwreck, we must understand this to mean that where property has been lent to a man in such a way that he can take it with him on a journey; if, however, I should lend silver plate to anyone because he said that he was going to invite some friends to supper, and he takes it out of the country with him, there is no doubt that he will be responsible for anything that happens through the acts of pirates and robbers, or by reason of shipwreck. This is the case where the property was lent only as a favor to the borrower, but if it was done for the benefit of both parties, for example, where we invited a common friend to supper, and you take it upon yourself to manage the affair, and I lend you the plate; I am aware that certain authorities hold that you are only responsible for bad faith, but it should be considered whether you are not also liable for negligence, for the determination of negligence is ordinarily made on the same principle as where property is given in pledge or as dowry. 1Where property is pledged, loaned, or deposited, and it is deteriorated by the act of the party who received it, not only the actions which we have mentioned will lie, but also that under the Lex Aquilia; but where any one of these is brought, the right to the others will be extinguished. 2There may be good cause for an action to be brought against the person who lends the property; as, for instance, where this is done for expenses incurred, on account of the health of the slave, or for seeking him and bringing him back after he has run away; but the expenses of his maintenance must be borne by the party who received him in order to use him in accordance with natural law. But with reference to what we have stated concerning any expenses incurred on account of the health or the flight of the slave, this only applies to expenses which are larger in amount; for the better opinion is that moderate expenses, as, for instance, those of his support, must be borne by the same individual. 3Moreover, where anyone lends vessels which are defective, and the wine or oil which is put into them is spoiled, or runs out, judgment must be rendered against him on this account. 4Ad Dig. 13,6,18,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 350, Note 10.Again, wherever a man can recover anything by a counter action he can retain it by the right of set-off, even when the direct action is brought against him. It may happen that what a party can recover on his part is of greater amount; or the judge may refuse to take the set-off into consideration; or proceedings are not instituted against him to obtain restitution of the article lent, because it has been destroyed by accident, or has been returned without judicial proceedings; so we say that a counter action is necessary.

19Ad Dig. 13,6,19Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 264, Note 18.Julianus, Digest, Book I. There is no doubt that parties who agree to keep something safely, or receive it to be used, are not liable for unlawful damage committed by another; for how can we provide by either care or diligence against some one doing us wrongful injury?

20Ad Dig. 13,6,20BOHGE, Bd. 1 (1871), S. 267: Verpflichtung des Käufers wegen Zurücksendung der Emballage durch einen zuverlässigen Transportanden.The Same, On Urseius Ferox, Book III. If I give silver lent by you to me to a slave of mine to be delivered to you, who is so reliable that no one would think that he would be imposed upon by any evil-minded persons, and if such persons obtain possession of the silver, the loss will not be mine.

21Africanus, Questions, Book VIII. You lent an article to me and then you took it away afterwards; you brought an action on loan, and I did not know that you had taken the article; the judge rendered a decision against me and I paid it. I afterwards ascertained that the article had been removed by you, and the question arose what kind of an action I could bring against you? The answer was that there could not be an action for theft, but that I would be entitled to a counter prætorian action on account of the loan. 1While in the army, I gave certain vessels to my companions to be used at the common risk, and my slave, having stolen them, deserted to the enemy, and was afterwards recovered without the vessels. It is established that I will be entitled to an action against my companions on the ground of loan, for their respective shares, but they can proceed against me for theft, on account of the act of my slave, since the claim for reparation follows the person. And if I lend you an article to be used at your own risk, and it is stolen by my slave, you can bring an action for theft against me on account of the act of the slave.

22Paulus, On the Edict, Book XXII. Where a slave whom I lent you commits a theft, the question arises whether a counter action on loan will be sufficient, just as this would lie if you had spent any money for the cure of the slave; or whether you can bring an action for theft? And, there is no doubt that the party who requested the loan can bring a noxal action for theft, and that the lender is liable to a counter action on loan, since he made the loan knowing that the slave was dishonest, while the other party was ignorant of the fact.

23Pomponius, On Quintus Mucius, Book XXII. If I lend you a horse to be used for the purpose of travelling to a certain place, and, through no negligence on your part, the value of the horse is diminished by the journey, you will not be liable to an action on loan; but I, myself, was negligent because I lent for such a long journey a horse which could not endure the fatigue.