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In Afr. D. 13.6.21.1 the expression vasa utenda periculo communi dedi means that the parties to commodatum have added a pact to the contract. The borrowers are then not only liable for dolus, culpa and custodia (safe-keeping), but bear the risk of vis maior too. Because of this contractual provision, African assumes that the legal situation of the borrowers is similar to that of co-owners of a res communis. This is why the borrowers are liable pro parte, when the borrowed objects have been stolen by the lender's slave. On the other hand (and according to Cels.-Ulp. D. 9.2.27.2), each of the borrowers is allowed to sue the dominus by an actio furti noxalis. If the lender decides to escape his liability by surrendering the offender, the slave has to be shared among the socii; for this reason the other borrowers will probably be entitled to an actio communi dividundo or a similar actio in factum against the plaintiff. |
