Ancora sul ‘comodato precario’: osservazioni romanistiche sul rapporto tra comodato e precario alla luce di un recente pronunciamento della Cassazione.

The essay examines the complex dogmatic and historical relationship between the contract of comodato (loan for use) and the institution of precario (precarious loan) within the Italian legal framework, considering a recent ruling by the Italian Supreme Court (Corte di Cassazione). The author provides a thorough historical overview, tracing the roots of both figures back to Roman law, where precarium was an unstable factual arrangement inherently revocable ad libitum, whereas commodatum was a binding bilateral contract strictly governed by its intended purpose (modus) and duration (finis). The paper critiques the 1942 Italian Civil Code’s amalgamation of these distinct institutions under article 1810 cod. civ., a hybrid structure often labeled as a “monstrum iuridicum”. Finally, the analysis focuses on long-term property loans granted for professional or business activities, arguing for a paradigm shift that recognizes an implied term based on specific contractual use under article 1809 cod. civ., thereby limiting the scope of arbitrary, unilateral revocation ad nutum.