COMODATO BANCARIO. — More commonly it is called pseudo-c. or the bank loan of securities. Pseudo-c., because, while on the one hand it has certain aspects resembling the contract of commodatum, on the other it differs from it in several respects, incorporating elements of other forms of contract, such as mutuum, usufruct, and lease.
By this contract the commodans delivers securities to a bank (the commodatary), and the latter undertakes to safeguard them, paying the commodans a commission as consideration for the right of use of the securities, which is reserved to the bank during the period for which the securities remain bound with II. This is the form of custody known as «open dossier»: that is, the client leaves the bank the right to use the said securities (if the dossier is closed, the securities remain the client’s property and the bank may not use them except in the client’s name and on the client’s behalf). In reality, the bank disposes of these securities as though they were its own. It should ultimately return the securities «in individuo», and not merely «in specie»; that is, it should return those specific securities, numerically identical. But the fact that the securities placed in custody are not perfectly identified at the time of delivery, their number and total value simply being recorded, means that in practice the bank’s obligation, at the end of the transaction, is limited to returning equivalent securities. This, together with the non-gratuitous nature of the contract, is one of the features that most clearly distinguishes the c. b. from commodatum properly so called, in which the very thing delivered must be returned, and brings it rather close to mutuum.
In mutuum, however, ownership and civil possession pass to the mutuatary, whereas this does not occur in the case of the c. b. In this respect the c. b. has points in common with usufruct, since in usufruct too there is a right to enjoy things owned by another, together with an obligation to preserve their substance, both in their material composition and in their form.
But it also differs from usufruct in several respects, such as duration, which in usufruct is measured at most by the lifetime of the usufructuary: in the c. b. it passes to the heirs. Moreover, whereas usufruct may also be imposed by law, the c. b. is entirely voluntary.
Through this operation, banks can, especially during particular periods of crisis, obtain liquid funds by pledging the securities in repurchase agreements or as collateral, or by employing the securities themselves in other banking operations.
The obligations of the contracting parties, defined generically in the exposition of the contract itself, also have an ethical value and therefore bind in conscience. They weigh more heavily on the commodatary, that is, the bank, than on the commodans. The latter is chiefly obliged to compensate for damages should the deposited securities be seized or something similar occur, for example, because they are of stolen provenance.
The greater obligations and greater likelihood of violation lie with the commodatary, the bank, which must safeguard and preserve the securities and subsequently return them at the proper time. The securities must be employed in ordinary operations, such as savings, of which they are often a form, and not in those which, alongside broad possibilities of profit, entail considerable risk.
Savers receive no advantage from the large profits that are hoped for (the commission is in fact very modest), whereas any losses, together with the consequent collapse of the bank, may also affect the savings, which in this case take the form of securities.
On the other hand, the client too should consider the painful surprises to which he may be exposed by allowing himself to be drawn into speculation over the small compensation that the bank grants him for the use of his securities, and should not always allow himself to be overcome by the desire for gain, or at least should draw conclusions regarding the soundness of the bank to which he entrusts them.