LOAN FOR CONSUMPTION, or, MUTUTUM. (q. v.) A contract by which the owner of a personal chattel¹, called the lender, delivers it to another, known as the borrower, by which it is agreed that the borrower shall consume the chattel loaned, and return at the time agreed upon, another chattel, of the same quality, kind, and number, to the lender, either gratuitously³ or for a con- sideration; as, if Peter lends to Paul one bushel of wheat, to be used by the latter, so that it shall not be returned to Peter, but instead of which Paul will return to Peter another bushel of wheat of the same kind and quality, at a time agreed upon.

2. It is evident that this contract differs essentially⁴ from a loan for use. In the latter, the property of the thing lent remains⁵ with the lender, and, if it be destroyed without the fault or negligence⁶ of the borrower, it is his loss, and the thing to be returned is the identical thing lent; but in the loan for consumption, the property passes to the borrower, and in case of its destruction, he must bear the loss, and the identical property is never to be returned, but other property of the like kind, quality, and number. This contract bears a nearer resemblance to a barter⁷ or exchange; in a loan for consumption the borrower agrees to exchange with the lender a bushel of wheat, which he has not, but expects to obtain, for another bushel of wheat which the lender now has, and with which he is willing to part; or a more familiar example may be given: Debtor⁸ borrows from Creditor⁹, one hundred dollars to use as he shall deem best, and he promises to return to Creditor another hundred dollars at a future time.

3. In cases of loan for consumption, the lender may charge for the use of the thing loaned or not; as, if I lend one thousand dollars to a friend for a month, I may charge interest or not but a loan for use is always gratuitous² when anything is charged for the use, it becomes a hiring. See Hire; and also Mutuum.

LOAN FOR USE, or COMMODATUM, contracts. A bailment¹⁰, or loan of an article for a certain time, to be used by the borrower, without paying for it. 2 Kent's Com. 446, 447. Sir William Jones defines it to be a bailment of a thing for a certain time, to be used by the borrower, without paying for it. Jones' Bailm. 118. According to the Louisiana Code, art. 2864, it is an agreement by which a person delivers a thing to another, to use it according to its natural destination, or according to the agreement, under an obligation on the part of the borrower, to return it after he shall have done using it. This loan is essentially gratuitous. The Code Civil, art. 1875, defines it in nearly the same words. Lord Holt has defined this bailment to be, when goods or chattels¹¹, that are useful, are lent to a friend gratis¹², to be used by him: and it is called commodatum, he adds, because the thing is to be restored in specie. 2 Ld. Ray. 909, 913.

2. The loan for use resembles somewhat a gift, for the lender, as in a gift, gives something to the borrower; but it differs from the latter, because there the property of the thing given is transferred to the donee; instead of which, in the loan for use, the thing given is only the use, and the property in the thing lent remains in the lender. This contract has also some analogy to the mutuum, or loan for consumption; but they differ in this, that in the loan for use the lender retains the property in the thing lent, and it must be returned in individuo; in the loan for consumption, on the contrary, the things lent are to be consumed, such as money, corn, oats, grain, cider, &c., and the property in them is transferred to the borrower, who becomes a debtor to the lender for the same quantity of like articles. Poth. Pret a. Usage, n. 9, 10.

3. Several things are essential to constitute this contract; first, there must be a thing which is lent; and this, according to the civil law, may be either a thing movable, as a horse, or an immovable, as a house or land, or goods, or even a thing incorporeal¹³. But in our law, the contract seems confined entirely¹⁴ to goods and chattels, or personal property, and not to extend to real estate. It must be a thing lent, in contradistinction to a thing deposited or sold, or entrusted¹⁵ to another for the purpose of the owner. Story on Bailm. § 223.

4. Secondly¹⁶. It must be lent gratuitously, for if any compensation is to be paid in, any manner whatsoever¹⁷, it falls under Another denomination¹⁸, that of hire. Ayliffe's Pand. B. 4, tit. 16, n. 516; Louis. Code, art. 2865; Pothier, Pret a Usage, c. 1, art. 1, n. 1, c. 2, art., 3, n. 11.

5. Thirdly. It must be lent for use, and for the use of the borrower. It is not material whether the use be exactly that which is peculiarly appropriate to the thing lent, as a loan of a bed to lie on, or a loan of a horse to ride; it is equally a loan, if the thing is lent to the borrower for any other purpose; as, to pledge as a security on his own account. Story on Bailm. §225. But the rights of the borrower are strictly¹⁹ confined to the use actually or impliedly agreed to by the lender, and cannot be lawfully²¹ exceeded. Poth. Pret a Usage, c. 1, §1, art. l, n. 5. The use may be for a limited time, or for an indefinite time.

6. Fourthly. The property must be lent to be specifically returned to the lender at the determination of the bailment; and, in this respect it differs from a mutuum, or loan for consumption, where the thing borrowed, such as corn, wine, and money, is to be returned in kind and quantity. See Mutuum. It follows, that a loan for use can never be of a thing which is to be consumed by use; as, if wine is lent to be drunk at a feast, even if no return in kind is intended, unless, perhaps, so far as it is not drunk; for, as to, all the rest, it is strictly a gift.

7. In general, it may be said that the borrower has the right to use the thing during the time and for the purpose which was intended between the parties. But this right is strictly confined to the use, expressed or implied in the particular transaction; and the borrower, by any excess, will make himself responsible. Jones' Bailm. 68; Cro. Jac. 244; 2 Ld. Raym. 909,916; 1 Const. Rep. So. Car. 121; Louis. Code: art. 2869; Code Civil, art. 1881; 2 Bulst. 306.

8. The obligations of the borrower are to take proper care of the thing borrowed, to use it according to the intention of the lender, to restore it in proper time, and to restore it in proper condition. Story on Bailm. §236; Louis. Code, art. 2869; Code Civ. 1880.

9. By the common law, this bailment may always be terminated at the pleasure of the lender. (q. v.) Vin. Abr. Bailment, D; Bac. Abr. Bailment, D.

10. The property in the thing lent in a loan for use, remains in the lender, Story on Bailment, §283; Code Civil, art. 1877; Louis. Code, art. 2866.

11. It is proper to remark that the loan for use must be lawful²⁰; a loan by Peter to Paul of a ladder to enable him to commit a larceny²², or of a gun, to commit a murder, is not a loan for use, but Peter by this act becomes an accomplice²³ of Paul. 17 Duv. n. 503; 6 Duverg. n. 32.