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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； cannot therefore be determined from the conditions of the
contract in itself； but only by the principle of the court before
which it comes； and which can only consider what is certain in the
contract； and the only thing certain is always the fact as to the
possession of the thing as property。 Hence the judgement passed in the
state of nature will be different from that given by a court of
justice in the civil state。 The judgement from the standpoint of
natural right will be determined by regard to the inner rational
quality of the thing； and will run thus： 〃Loss arising from damage
accruing to a thing lent falls upon the borrower〃 （casum sentit
commodatarius）； whereas the sentence of a court of justice in the
civil state will run thus： 〃The loss falls upon the lender〃 （casum
sentit dominus）。 The latter judgement turns out differently from the
former as the sentence of the mere sound reason； because a public
judge cannot found upon presumptions as to what either party may
have thought； and thus the one who has not obtained release from all
loss in the thing； by a special accessory contract； must bear the
loss。 Hence the difference between the judgement as the court must
deliver it and the form in which each individual is entitled to hold
it for himself； by his private reason； is a matter of importance；
and is not to be overlooked in the consideration of juridical
judgements。
39。 III。 The Revindication of what has been Lost。
（Vindicatio）。
It is clear from what has been already said that a thing of mine
which continues to exist remains mine； although I may not be in
continuous occupation of it； and that it does not cease to be mine
without a juridical act of dereliction or alienation。 Further； it is
evident that a right in this thing （jus reale） belongs in
consequence to me （jus personale）； against every holder of it； and not
merely against some particular person。 But the question now arises
as to whether this right must be regarded by every other person as a
continuous right of property per se； if I have not in any way
renounced it； although the thing is in the possession of another。
A thing may be lost （res amissa） and thus come into other hands in
an honourable bona fide way as a supposed 〃find〃； or it may come to me
by formal transfer on the part of one who is in possession of it；
and who professes to be its owner； although he is not so。 Taking the
latter case； the question arises whether； since I cannot acquire a
thing from one who is not its owner （a non domino）； I am excluded by
the fact from all right in the thing itself； and have merely a
personal right against a wrongful possessor？ This is manifestly so； if
the acquisition is judged purely according to its inner justifying
grounds and viewed according to the state of nature； and not according
to the convenience of a court of justice。
For everything alienable must be capable of being acquired by