XIV. Other Ways of Contracting an Obligatio.
An obligatio may be contracted by the thing, as, for example, by giving a mutuum. This always consists of things which may be weighed, numbered, or measured, as wine, oil, corn, coin, brass, silver, or gold. In giving these things by number, measure or weight, we do so that they may become the property of those who receive them. The identical things lent are not returned, but only others of the same nature and quality; and hence the term mutuum, because what I give from being mine becomes yours. From this contract arises the actio termed condictio.
1. A person, also, who receives a payment which is not due to him, and which is made by mistake, is bound re, i. e., by the thing; and the plaintiff may have against him an actio condictitia to recover what he has paid. For the condictio Si paret eum dare oportere may be brought against him, exactly as if he had received a mutuum.
Thus a pupil, to whom a payment has been made by mistake without the authorization of his tutor, is not subject to a condictio indebitti, any more than he would be by the gift of a mutuum. This species of obligatio, however, does not seem to arise from a contract, since he, who gives in order to acquit himself of something due from him, intends rather to dissolve than to make a contract.
2. A person, too, to whom a thing is given as a commodatum, i. e., is given that he may make use of it, is bound re, and is subject to the actio commodati. But there is a wide difference between him and a person who has received a mutuum; for the thing is not given him that it may become his property, and he therefore is bound to restore the identical thing he received.
And, again, he who has received a mutuum, if by any accident, as fire, the fall of a building, shipwreck, the attack of thieves or enemies, he loses what he received, still remains bound. But he who has received a thing lent for his use, is indeed bound to employ his utmost diligence in keeping and preserving it; nor will it suffice that he should take the same care of it, which he was accustomed to take of his own property, if it appear that a more careful person might have preserved it in safety; but he has not to answer for loss occasioned by superior force, or extraordinary accident, provided the accident is not due to any fault of his.
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