If, however, you take with you on a journey the thing lent you to make use of, and you lose it by the attack of enemies or robbers, or by shipwreck, you are undoubtedly bound to restore it. A thing is properly said to be commodatum when you are permitted to enjoy the use of it, without any recompense being given or agreed on; for, if there is any recompense, the contract is that of locatio, as a thing, to be a commodatum, must be lent gratuitously.
3. A person with whom a thing is deposited is bound re, and is subject to the actio depositi, and must give back the identical thing which he received. But he is only answerable if he is guilty of fraud, and not for a mere fault, such as carelessness or negligence; and he cannot, therefore, be called to account if the thing deposited, being carelessly kept, is stolen. For he who commits his property to the care of a negligent friend, should impute the loss to his own want of caution.
4. A creditor, also, who has received a pledge, is bound re, for he is obliged to restore the thing he has received, by the actio pigneratitia. But, inasmuch as a pledge is given for the benefit of both parties, of the debtor that he may borrow more easily, and of the creditor that repayment may be better secured, it has been decided that it will suffice if the creditor employs his utmost diligence in keeping the thing pledged; if, notwithstanding this care, it is lost by some accident, the creditor is not accountable for it, and he is not prohibited from suing for his debt.
XV. Verbal Obligationes.
An obligatio by word of mouth is contracted by means of a question and an answer, when we stipulate that anything shall be given to, or done for us. It gives rise to two actiones—the conditio, when the stipulation is certain, and the actio ex stipulatu, when it is uncertain. The term stipulatio is derived from stipulum, a word employed by the ancients to mean “firm,” and coming perhaps from stipes, the trunk of a tree.
1. Formerly, the words used in making this kind of contract were as follows—Spondes? do you engage yourself? Spondeo, I do engage myself. Promittis? do you promise? Promitto, I do promise. Fidepromittis? do you promise on your good faith? Fidepromitto, I do promise on my good faith. Fideiubes? do you make yourself fideiussor? Fideiubeo, I do make myself fideiussor. Dabis? will you give? Dabo, I will give. Facies? will you do? Faciam, I will do.
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