COMODATO. — It is a contract by which one of the contracting parties (the bailor) delivers to the other (the bailee) a movable or immovable thing, so that the latter may use it for a specified period or purpose, with the obligation of returning the very thing received (art. 1803 of the Civil Code). It is an essentially gratuitous contract; if remuneration were agreed upon, there would be no c. but rather a lease; it is a contract involving unilateral obligations; it is a real contract, which does not exist until the object has been delivered.
It differs from a loan for consumption, which is not essentially gratuitous and may also be onerous (loan at interest); it cannot have just anything as its object, but only a quantity of money or other fungible things; and it entails the obligation of returning not the same things received, but the same quantity, kind, and quality. It also differs from a deposit, which is intended for the safekeeping of the thing, whereas the c. is ordinarily intended to provide the bailee with the utility that use of the thing can afford.
The obligations of the contracting parties are set out in the Italian Civil Code and are also binding in conscience, according to the general principle governing the entire moral treatise iustitia et iure: civil laws, which regulate the juridical relations among different persons, have ethical value and therefore bind in conscience, unless they are contrary to divine law.
The principal obligations of the bailee are: to guard and preserve the thing with the diligence of a good paterfamilias (in certain cases the bailee is even liable for the accidental destruction of the thing: arts. 1850, 1866); to use the thing only for the purpose determined by the contract or by the nature of the thing itself; and not to allow others to enjoy its use without the consent of the bailor (art. 1804). The thing must be returned either upon the expiry of the period or term, at the end of the use, or, in certain cases, even upon a simple request by the bailor (arts. 1809–11).
The principal obligations of the bailor are: if the bailee has had to incur extraordinary and urgent expenses for the preservation of the thing, the bailor must reimburse him (art. 1808); if the thing has defects, the bailor is obliged to compensate the bailee for the damage thereby caused to him (e.g., the bicycle’s brakes were defective and the bailee was injured); it should be noted, however, that this obligation exists only when the bailor knew of the defect and failed to inform the bailee of it (art. 1812).
In canon law, as regards ecclesiastical property, the norms established by the civil law of the respective countries apply to the c. (v. BENI ECCLESIASTICI; CANONIZZAZIONE DELLE LEGGI; CONTRATTO); the only prohibition is—and perhaps under pain of nullity of the contract, notwithstanding can. 11—the granting in c. of sacred things for uses inconsistent with their nature (can. 1537, which is an application of the general principle enunciated in can. 1150). The obligation to observe the same formalities prescribed for the alienation of ecclesiastical property also applies to the c. when the contract, although not a true alienation, may cause patrimonial harm to the ecclesiastical entity to which the thing belongs.