LOAN FOR USE (called, also, commoda tum). A bailment of an article to be used by the borrower without paying for the use. 2 Kent 573.
An agreement by which a person delivers a thing to another, to use it according to its natural destination, or according to the agreement, under the obligation on the part of the borrower, to return it after he shall have done using it. La. Civ. Code (1889) Art. 2893.
Loan for use (called commodatum in the civil law) differs from a loan for consump (called mutwumn in the civil law) in this, that the commodatwin must be ,specif ically returned, the mutuum is to be returned in kind. In the case of a commodiztum, the property in the thing remains in the lender; in a mutwum, the property passes to the borrower.
The loan, like other bailments, must be of some thing of a personal nature ; Story, Balm. § 223 ; it must be gratuitous ; 2 Ld. Raym. 913 ; for the use of the borrower, and this as the principal object of the bail ment ; Story, Balm. § 225 ; Carpenter v. Brand, 13 Vt. 161, 37 Am. Dec. 587; and must be lent to be specifically returned at the determination of the bailment; Story, Bailm. § 228.
The general law of contracts governs as to the capacities of the parties and the char acter of the use ; Story, Balm. §§ 50, 162, 302, 380. He who has a special property may loan the thing, and this even to the general owner, and the possession of the general owner still be that of a borrower ; 8 Term 199. 2 Taunt. 268.
The borrower may use the thing himself, but may not, in general, allow others to use it ; 1 Mod. 210; Scranton v. Baxter, 4 Sandf. (N. Y.) 8; during the time and for the pur poses and to the extent contemplated by the parties ; Wheelock v. Wheelright, 5 Mass.
104; 3 Bingh. N. C. 468. He is wound to use extraordinary diligence; Phillips v. Condon, 14 Ill. 84; Scranton v. Baxter, 4 Sandf. (N. Y.) 8 ; Story, Balm. § 237 ; is responsible for accidents, though inevitable, which in jure the property during any excess of use ; Booth v. Terrell, 16 Ga. 25; must bear the ordinary expenses of the thing ; Jones, Bailm. 67; and restore it at the time and place and in the manner contemplated by the contract; Booth v. Terrell, 16 Ga. 25 ; Clapp v. Nelson, 12 Tex. 373, 62 Am. Dec. 530; Story, Bailm. '§ 99; including, also, all accessories ; Booth v. Terrell, 16 Ga. 25 ; 2 Kent 566. As to the place of delivery, see Esmay v. Fanning, 9 Barb. (N. Y.) 189; Aldrich v. Albee, I Greenl. (Me.) 120, 10 Am. Dec. 45; Mason v. Briggs, 16 Mass. 453. He must, as a gen eral rule, return it to the lender; Edson v. Weston, 7 Cow. (N. Y.) 278 ; 1 B. & Ad. 450.
The lender may terminate the loan at his pleasure ; 9 East 49; Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346; Booth v. Terrell, 16 Ga. 25 ; is perhaps liable for expenses adding a permanent benefit ; Story, Balm. § 274. The lender still retains his property as against third persons, and, for some purposes, his possession; Gelston v. Hoyt, 13 Johns. (N. Y.) 561; 1 B. & Ald. 59. As to whether the property is transferred by a recovery of judgment for its value, see 26 E. L. & Eq. 328; White v. Philbrick, Greenl. (Me.) 147, 17 Am. Dec. 214; Camp bell v. Phelps, 1 Pick. (Mass.) 62, 11 Am. Dec. 139. See, generally, Edwards ; Jones; Story, Bailments ; Kent, Lect. 46; BAILMENT.