COMODATO. — It is a contract by which one of the contracting parties (the lender) delivers to the other (the borrower) a movable or immovable thing, so that the latter may use it for a determined time or purpose, with the obligation to return the same thing received (art. 1803 of the Civil Code). It is essentially a gratuitous contract; if a compensation were agreed upon, it would not be a loan for use, but a lease; it is a contract with unitary obligations; it is a real contract, which does not exist until the object is delivered.
It is distinguished from a loan of money (mutuo), which is not essentially gratuitous, since it can also be onerous (interest-bearing loan), cannot have as its object anything other than a quantity of money or other fungible things, and entails the obligation to return not the same things received, but the same quantity, kind, and quality; it is also distinguished from deposit, which is directed toward the custody of the thing, whereas the loan for use is, as a rule, directed toward procuring for the borrower the utility that the use of the thing can provide.
The obligations of the contracting parties are set forth in the Italian Civil Code and are binding also in conscience, according to the general principle that governs the entire moral treatise on the institution and its law; the rules that govern juridical relations among various persons have an ethical value and therefore oblige in conscience, unless they are contrary to divine law.
The principal obligations of the borrower are: to guard and preserve the thing with the diligence of a good father of a family (the borrower is even liable for the fortuitous perishing of the thing in certain cases: arts. 1850, 1860); to use the thing only for the purpose determined by the contract or by the nature of the thing itself; not to grant the enjoyment of it to others without the consent of the lender (art. 1804). The return of the thing must be made either at the expiration of the term, or at the end of the use, or, in certain cases, even upon the simple request of the lender (arts. 1809–11).
The principal obligations of the lender are: if the borrower has had to incur extraordinary and urgent expenses for the preservation of the thing, the lender must reimburse him (art. 1808); if the thing has defects, the lender is bound to compensate the borrower for the damage that may have resulted therefrom (e.g., the brakes of the bicycle were faulty and the borrower was injured); it should be noted, however, that the obligation exists only when the lender knew of the defect and did not inform the borrower of it (art. 1812).
In canon law, with regard to ecclesiastical goods, the norms established by civil law in the respective countries apply to the loan for use (v. BENI ECCLESIASTICI; CANONIZZAZIONE DELLE LEGGI; CONTRATTO); it is, however, forbidden (and perhaps null and void, despite can. 11) to lend sacred things for uses not consonant with their nature (can. 1537, which is an application of the general principle enunciated in can. 1150). Moreover, the obligation to observe the same formalities prescribed for the alienation of ecclesiastical goods also applies to the loan for use, when the contract, although not being a true alienation, can produce a patrimonial loss for the ecclesiastical entity to which the thing belongs.