Definition
A gratuitous loan for use — a loan in which the lender transfers possession of a thing to the borrower without charge, with the borrower obligated to return the identical thing in the same condition as received. The term belongs to Scots law and civil law tradition, derived directly from the Latin commodatum. Unlike a loan for consumption (mutuum), a commodate involves a specific, non-fungible thing that must be returned; the borrower acquires no ownership, only temporary use. The implied contract of the borrower is restitution in kind, not replacement or equivalent value.
Common Language
Modern common usage (Wiktionary): To put in order, adjust, or arrange; to suit or accommodate; to lend.
Historical common usage (Webster's 1913): A gratuitous loan.
The ordinary sense of "lend" or "accommodate" captures part of the meaning but obscures the legally significant elements: that the loan is gratuitous (no compensation changes hands), that the object of the loan is a specific thing rather than a fungible quantity, and that the obligation runs to return the very thing borrowed. A researcher encountering "commodate" in a general text might read it as a synonym for any loan, missing the civil-law precision that defines its legal use.
Common Confusion
COMMODATE vs. COMMODATUM: These are not interchangeable. Commodatum is the Latin term designating the underlying contract or transaction — the legal relationship created by a gratuitous loan for use. Commodate is the Scots law anglicization, used to describe the loan itself as an operative fact or legal event. In practice, historical sources sometimes use both within the same discussion; Burrill's explicitly notes that commodate is "closely formed from" commodatum and cross-references the Latin entry. Researchers should treat the two as related but distinct headwords when searching historical digests and institutional texts.
COMMODATE vs. BAILMENT (LOAN FOR USE): In common law jurisdictions, the equivalent concept is typically subsumed within the law of bailments — specifically, a gratuitous bailment for the sole benefit of the bailee. Commodate maps cleanly onto this category but carries more precise civil-law content, particularly the strict obligation of identical restitution. Do not assume that common law bailment authorities fully address the obligations and liabilities the civil law tradition attaches to commodate.
Why It Matters in Research
This term is primarily a Scots law and civil law term and will appear almost exclusively in institutional writers, treatise literature, and sources with civilian influence — not in English common law reporters or American case law with any frequency. Researchers working in the Law Mind corpus should expect to find commodate in Scottish institutional texts (Erskine, Bell), in Story's Bailments, and in Ayliffe's Pandects, rather than in year books or equity reports.
Judge Story's expressed regret — noted in Bouvier — that commodate was not adopted and naturalized into American legal usage (as mandate was from mandatum) is itself a useful research signal: it confirms that American courts did not routinely employ the term, and that the underlying transaction in American sources will almost always appear under bailment, loan for use, or gratuitous loan. Searching for commodate in American materials after roughly 1850 is unlikely to yield results; searching for commodatum may yield somewhat more in scholarly and treatise contexts.
The term's appearance in Rapalje & Lawrence alongside unrelated parliamentary practice material (a printing artifact) is a reminder that historical dictionary entries sometimes suffer from erratic editorial arrangement. The substantive content of that entry is consistent with the others.
Ayliffe's extension of the terminology — terming the bailor the "commodant" — did not take hold in any jurisdiction and should be treated as an idiosyncrasy of one author, not established usage.
Historical Dictionary Support
The five historical dictionaries consulted present a remarkably consistent definition: a gratuitous loan for use in Scots law, derived from the Latin commodatum. All cite Erskine's Institutes (Book 3, Title 1, Section 20) as the primary authority, making Erskine the foundational source for any serious research into the doctrine. Bell's Commentaries is cited by Bouvier as a secondary Scots authority.
Bouvier adds the most substantive content, including Story's endorsement of the term's adoption, Ayliffe's terminology for the bailor, and the core obligation of restitution in identical condition. Black's (both editions) and Burrill confine themselves to the definition and the Latin cross-reference without elaboration. Rapalje & Lawrence provides the definition cleanly but the entry is editorially interrupted by unrelated material, reflecting a typographical or organizational defect in that edition.
No historical dictionary surveyed attempts a full treatment of the borrower's liability (e.g., for use beyond the agreed purpose, or for damage caused by extraordinary risk). Researchers needing that doctrinal depth must proceed to Story's Bailments directly.
Jurisdictional Note
Commodate as a term of art is specific to Scots law and civilian legal traditions. Common law jurisdictions — England, most of the United States — address the same transaction under the law of bailments and do not employ the term in operative legal texts or judicial opinions. Civilian-influenced jurisdictions, including Louisiana and Quebec, may use commodatum or its equivalents in their civil codes.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Bailments; Gratuitous Bailment; Scots Law and the Civil Law Tradition