Commodatum is a contract by which one person (the bailor) delivers a non-consumable thing to another (the bailee) so that the latter may use it for a certain time and then return the very same thing. It is essentially gratuitous — if the borrower pays for the use, it becomes a lease. The bailor retains ownership; the borrower acquires only the use, not the fruits (unless stipulated). The borrower must take care of the thing with the diligence of a good father of a family, use it only for the agreed purpose, and return it at the end of the period or use. The borrower generally bears ordinary expenses of use, and is liable for loss even due to a fortuitous event in certain cases — for example, if they devote the thing to a different use, keep it longer than agreed, or could have saved either the borrowed thing or their own but chose to save their own. Commodatum differs from mutuum (a simple loan of money or consumable goods), where ownership passes and an equivalent, not the same thing, is returned.
Lending your neighbor a ladder, or a friend your car, for free, is a real legal contract: commodatum — the loan for use. It carries specific duties.
What Commodatum Is
Commodatum is a contract by which one person (the bailor) delivers a non-consumable thing to another (the bailee/borrower) so the borrower may use it for a certain time and then return the very same thing.
It Must Be Free
Commodatum is essentially gratuitous. If the borrower pays for the use, the contract is no longer commodatum but a lease. The absence of compensation is what defines it.
Ownership and Fruits Stay With the Bailor
- The bailor retains ownership — the borrower gets only the use; and
- The borrower is not entitled to the fruits of the thing, unless expressly stipulated.
The Borrower's Obligations
The borrower must:
- Take care of the thing with the diligence of a good father of a family;
- Use it only for the agreed purpose (or the nature of the thing);
- Generally bear the ordinary expenses for the use and preservation; and
- Return the thing at the end of the period or use.
Liability for Loss
Normally, a borrower is not liable for loss due to a fortuitous event. But in commodatum, the borrower is liable even for fortuitous loss in certain cases, such as when they:
- Devote the thing to a different use than agreed;
- Keep it longer than the period agreed;
- Could have saved either the borrowed thing or their own but chose to save their own; or
- Lend it to a third person not authorized by the bailor.
Commodatum vs. Mutuum
Do not confuse commodatum with mutuum (a simple loan):
- Commodatum — loan of a non-consumable thing for use; ownership stays with the bailor; the same thing is returned; while
- Mutuum — loan of money or consumable goods; ownership passes to the borrower; an equivalent (not the same thing) is returned.
Practical Takeaways
- Commodatum is a free loan for use of a non-consumable thing, to be returned in kind;
- The borrower must use it only as agreed, care for it diligently, and can be liable even for fortuitous loss if they misuse or overkeep it;
- It differs from mutuum, where ownership passes and an equivalent is returned — and adding rent turns commodatum into a lease.
Frequently Asked Questions
What is commodatum? A contract by which one person delivers a non-consumable thing to another to use for a certain time and then return the very same thing. It is essentially gratuitous, a loan for use.
Does commodatum have to be free? Yes. Commodatum is essentially gratuitous. If the borrower pays for the use, the contract becomes a lease rather than a commodatum.
Is the borrower liable if the thing is lost by accident? Normally not for fortuitous events, but in commodatum the borrower is liable even for fortuitous loss in certain cases, such as using it for a different purpose, keeping it longer than agreed, or saving their own thing instead of the borrowed one.
How is commodatum different from a simple loan (mutuum)? In commodatum, a non-consumable thing is loaned for use, ownership stays with the bailor, and the same thing is returned. In mutuum, money or consumable goods are loaned, ownership passes to the borrower, and an equivalent is returned.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.