Loan agreement – what it is and how to spell it
A loan is a contract by which one party (the lender) delivers to the other (the borrower) a movable or immovable property so that he can use it for a time or for a specific use, with the obligation to return it.
The gratuitousness of the loan
Article. 1803 of the Civil Code establishes that ” the loan is essentially free “, therefore assuming that the relationship between the parties has no consideration.
However, although this is essentially a free contract, the possibility of having recourse to a so-called ” modal ” or ” onerous ” loan is certainly not excluded, with the sole caution that the burden imposed by the parties must not have a consistency such as to eliminate the typical nature of the contract.
Notwithstanding the lines and the codicist definition referred to in art. 1803 cc it would seem that the relationship is very simple, and is mainly based on an exchange characterized by elements of trust and courtesy between the parties, in reality the loan is a rather complex contractual choice, which can determine the onset of various problems and which, precisely for this reason, has seen the legislator focus specifically on these areas.
Think, among other things, of the case in which at the time limit of a loan agreement concerning an immovable property , at the expiry date the borrower decides not to return it : at that point and in that condition the lender will have nothing else to do. who undertake an ordinary judgment and thus obtain the return of the asset, as there is no provision for a rapid procedure for the loan as for example for the eviction procedures in the lease contracts .
The obligations in the loan
The sanctioning of the obligations deriving from the loan agreement is the art. 1804 cc, according to which “the borrower is obliged to guard and preserve the thing with the diligence of a good family man . He can only use it for the use determined by the contract or by the nature of the thing. He cannot grant a third party the enjoyment of the thing without the consent of the supervisor. If the borrower does not fulfill the aforementioned obligations, the counselor can request the immediate return of the thing, in addition to compensation for damage “.
The article of the code establishes therefore that the borrower must keep and preserve the good received with the typical commitment of the average man, and that he cannot grant to third parties the enjoyment of the good, except in the case in which he has received the consent of the comforting, even if not in an express and written form, but perhaps through conclusive behavior (although, for the avoidance of doubt, it is certainly more appropriate to resort to a written form).
The loss of the thing in the loan
The following art. 1805 cc, entitled ” Perimento della cosa “, informs us that the borrower is responsible if the thing perishes due to a fortuitous event to which he could subtract it by replacing it with his own thing, or if, being able to save one of the two things, he preferred his own ” .
On the other hand, the borrower will not be responsible for the normal deterioration that the good could suffer due to the simple effect of the use for which it was delivered. The exception is the case that the deterioration is not caused by a fault of the borrower.
The second paragraph of art. 1805 cc also informs that “the borrower who uses the thing for a different use or for a longer time than the one allowed to him , is responsible for the loss due to cause not attributable to him, if he does not prove that the thing would have perished even if had not used it for different uses or had it returned in due time ”.
On the other hand, there is an obligation that instead bears on the owner of the property and that concerns possible defects of the thing given on loan : if in fact these defects cause damage to those who use the thing, the liable person will be obliged to compensate them if, despite being a knowledge of the vices, did not warn the borrower.
As far as the expenses related to the use of the asset are concerned , it is still the code, in article 1808, to sanction that it is the one who uses the good on loan to have to bear the expenses necessary to use the thing without being able to request a refund. The one who uses the thing can still be reimbursed only for extraordinary expenses “incurred for the conservation of the thing, if these were necessary and urgent”.
Restitution at the end of the loan
Under Article 1809 of the Italian Civil Code, the legislator regulates the return of the asset upon expiry of the agreed term , establishing that the borrower must proceed with the return of the asset. If, however, during the agreed term or before the borrower has ceased to use the thing, an urgent and unforeseen need arises for the counselor, who can demand immediate repayment.
And if the contract does not provide for a fixed-date deadline?
Also in this case it is the legislator who comes to our rescue: in the art. 1810 of the Italian Civil Code, the code establishes that if a term has not been agreed upon, nor does this result from the use to which the thing was to be destined, the borrower is required to return it as soon as the worker requests it.
Moreover, the same right to request the immediate restitution of the thing exists in the hypothesis of the death of the borrower: in this case the liable person can ask the heirs for an immediate return even if a term not yet expired had been established.