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The System of those Laws Which Require No External Promulgation。
CHAPTER III。 Acquisition Conditioned by the Sentence of
a Public Judicatory。
36。 How and What Acquisition is Subjectively Conditioned
by the Principle of a Public Court。
Natural right； understood simply as that right which is not
statutory； and which is knowable purely a priori； by every man's
reason； will include distributive justice as well as commutative
justice。 It is manifest that the latter； as constituting the justice
that is valid between persons in their reciprocal relations of
intercourse with one another； must belong to natural right。 But this
holds also of distributive justice； in so far as it can be known a
priori； and decisions or sentences regarding it must be regulated by
the law of natural right。
The moral person who presides in the sphere of justice and
administers it is called the Court of justice； and； as engaged in
the process of official duty； the judicatory； the sentence delivered
in a case； is the judgement （judicium）。 All this is to be here
viewed a priori； according to the rational conditions of right；
without taking into consideration how such a constitution is to be
actually established or organized； for which particular statutes；
and consequently empirical principles； are requisite。
The question； then； in this connection； is not merely 〃What is right
in itself？〃 in the sense in which every man must determine it by the
judgement of reason； but 〃What is right as applied to this case？〃 that
is； 〃What is right and just as viewed by a court？〃 The rational and
the judicial points of view are therefore to be distinguished； and
there are four cases in which the two forms of judgement have a
different and opposite issue。 And yet they may co…exist with each
other； because they are delivered from two different； yet respectively
true； points of view： the one from regard to private right； the
other from the idea of public right。 They are： I。 The contract of
donation （pactum donationis）； II。 The contract of loan （commodatum）；
III。 The action of real revindication （vindicatio）； and IV。
Guarantee by oath （juramentum）。
It is a common error on the part of the jurist to fall here into the
fallacy of begging the question by a tacit assumption （vitium
subreptionis）。 This is done by assuming as objective and absolute
the juridical principle which a public court of justice is entitled
and even bound to adopt in its own behoof； and only from the
subjective purpose of qualifying itself to decide and judge upon all
the rights pertaining to individuals。 It is therefore of no small
importance to make this specific difference intelligible； and to
draw attention to it。
37。 I。 The Contract of Donation。
（Pactum Donationis）。
The contract of donation signifies the gratuitous alienation
（gratis） of a thing or right that is mine。 It involves a relation
between me as the donor （donans）； and another person as the donatory
（donatarius）； in accordance with the principle of private right； by
which what is mine is transferred to the latter； on his acceptance
of it； as a gift （donum）。 However； it is not to be presumed that I
have voluntarily bound myself thereby so as to be compelled to keep my
promise； and that I have thus given away my freedom gratuitously； and；
as it were； to that extent thrown myself away。 Nemo suum jactare
praesumitur。 But this is what would happen； under such
circumstances； according to the principle of right in the civil state；
for in this sphere the donatory can compel me； under certain
conditions； to perform my promise。 If； then； the case comes before a
court； according to the conditions of public right； it must either
be presumed that the donor has consented to such compulsion； or the
court would give no regard； in the sentence； to the consideration as
to whether he intended to reserve the right to resile from his promise
or not； but would only refer to what is certain； namely； the condition
of the promise and the acceptance of the donatory。 Although the
promiser； therefore； thought… as may easily be supposed… that he could
not be bound by his promise in any case； if he 〃rued〃 it before it was
actually carried out； yet the court assumes that he ought expressly to
have reserved this condition if such was his mind； and if he did not
make such an express reservation； it will be held that he can be
compelled to implement his promise。 And this principle is assumed by
the court； because the administration of justice would otherwise be
endlessly impeded； or even made entirely impossible。
38。 II。 The Contract of Loan。 （Commodatum）。
In the contract of commodate…loan （commodatum） I give some one the
gratuitous use of something that is mine。 If it is a thing that is
given on loan； the contracting parties agree that the borrower will
restore the very same thing to the power of the lender； But the
receiver of the loan （commodatarius） cannot； at the same time；
assume that the owner of the thing lent （commodans） will take upon
himself all risk （casus） of any possible loss of it； or of its
useful quality； that may arise from having given it into the
possession of the receiver。 For it is not to be understood of itself
that the owner； besides the use of the thing； which he has granted
to the receiver； and the detriment that is inseparable from such
use； also gives a guarantee or warrandice against all damage that
may arise from such use。 On the contrary； a special accessory contract
would have to be entered into for this purpose。 The only question；
then； that can be raised is this： 〃Is it incumbent on the lender or
the borrower to add expressly the condition of undertaking the risk
that may accrue to the thing lent； or； if this is not done； which of
the parties is to be presumed to have consented and agreed to
guarantee the property of the lender； up to restoration of the very
same thing or its equivalent？〃 Certainly not the lender； because it
cannot be presumed that he has gratuitously agreed to give more than
the mere use of the thing； so that he cannot be supposed to have
also undertaken the risk of loss of his property。 But this may be
assumed on the side of the borrower； because he thereby undertakes and
performs nothing more than what is implied in the contract。
For example； I enter a house； when overtaken by a shower of rain；
and ask the loan of a cloak。 But through accidental contact with
colouring matter； it becomes entirely spoiled while in my
possession； or on entering another house； I lay it aside and it is
stolen。 Under such circumstances； everybody would think it absurd
for me to assert that I had no further concern with the cloak but to
return it as it was； or； in the latter case； only to mention the
fact of the theft； and that； in any case； anything more required would
be but an act of courtesy in expressing sympathy with the owner on
account of his loss； seeing he can claim nothing on the ground of
right。 It would be otherwise； however； if； on asking the use of an
article； I discharged myself beforehand from all responsibility； in
case of its coming to grief while in my hands； on the ground of my
being poor and unable to compensate any incidental loss。 No one
could find such a condition superfluous or ludicrous； unless the
borrower were； in fact； known to be a well…to…do and well…disposed
man； because in such a case it would almost be an insult not to act on
the presumption of generous compensation for any loss sustained。
Now by the very nature of this contract； the possible damage （casus）
which the thing lent may undergo cannot be exactly determined in any
agreement。 Commodate is therefore an uncertain contract （pactum
incertum）； because the consent can only be so far presumed。 The
judgement； in any case； deciding upon whom the incidence of any loss
must fall； cann