In this page:
- What is the loan
- Loan agreement: the bonds
- The risk of “loss” of the good and the regulation of expenses
- At the end of the loan
- Articles and sentences on the loan
- The articles of the code that deal with the loan
- Facsimile of a loan agreement
- The loan for use
- The loan for use: guide to the practical aspects and facsimile of the contract
- Index of the guide on the contract
What is the loan
The loan is that contract (governed by articles 1803 and following of the civil code) with which a part (the one who consigns ) delivers to the other (the borrower ) a movable or immovable property because these can be used for a time or for a use determined with the obligation then to return it.
This is essentially a free contract even if the possibility of using a “modal” or “onerous” loan is not excluded provided that the charge imposed is not of such a consistency as to eliminate the typical nature of the contract.
However, it should not be a consideration for the enjoyment of the thing.
Although it may seem a very simple way to manage certain relationships based on trust and courtesy , in reality it is a contractual choice that can create problems of no small importance, at least from a procedural point of view.
If, for example, a loan contract has as its object a real estate property and at maturity the borrower does not intend to return it, the lender must take an ordinary judgment to obtain the return of the property as there is no provision for a fast procedure such as for example eviction procedures in lease agreements.
Loan agreement: which obligations
From the loan agreement comes obligations first and foremost for the borrower (ie for the one who takes delivery of the good).
As set out in Article 1804 of the Civil Code, he must guard and preserve the good received with what is defined as the diligence of a good family man (ie with that typical commitment of the average man who is required in relation to the specific obligation assumed).
Anyone who has received a good on loan cannot grant it to third parties without having received the consent of the lender.
The eventual non-fulfillment of the obligations imposed on it by article 1804 civil code gives the owner the right to obtain the return of the asset in addition to compensation for damage.
The risk of “loss” of the good and the regulation of expenses
Anyone who has received the good on delivery must know that under certain conditions , the risk of the loss of the property may fall on him.
Article 1805 of the Civil Code states that the borrower is liable if the thing perishes due to a fortuitous event to which he could remove it by replacing it with his own thing, or if, being able to save one of the two things, he preferred his own.
The borrower, on the other hand, is not liable for the normal deterioration that the asset undergoes due to the use for which it was delivered, except in the case that there is no deterioration due to fault.
There is also an opposing obligation which instead bears on the owner of the property and which concerns possible defects of the thing given on loan. If these defects cause damage to those who use it, the constable must compensate them if, despite being aware of the defects, he has not warned the borrower.
As regards the costs related to the use of the property , article 1808 of the civil code provides that those who use the property on loan must bear the expenses necessary to use the property without being able to request reimbursement while having the right to be reimbursed only for expenses extraordinary “sustained for the conservation of the thing, if these were necessary and urgent”.
At the end of the loan
When the loan contract has reached the deadline, the asset must be returned but the law also provides for the possibility for the lender to request immediate repayment in the event that an urgent unforeseen need has arisen.
In the event that the loan does not provide for a specific duration, the law provides that the borrower must return the asset as soon as the learner requests it.
The same right to request immediate repayment exists in the event of the death of the borrower. In this case, the counselor can ask the heirs for immediate return even if a deadline has not yet been set.