Jurisconsultus resume

Leibniz once dismissed him as "vir parum jurisconsultus, minime philosophus" ("a man who is a small jurist, and a very small philosopher").

Where there is such a legislation, it becomes, in actual application to it, a system of positive right and law; and he who is versed in the knowledge of this system is called a jurist or jurisconsult (jurisconsultus).

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.

Such property is not acquired, because i may legitimately presume that his consent is given to this effect (per consensum praesumptum); nor because i can assume that, as he does not oppose my acquisition of it, he has relinquished or abandoned it as his (rem derelictam).

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.

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?

Commodate is therefore an uncertain contract (pactum incertum), because the consent can only be so far presumed.

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.

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