Extract
[...] However, practice reveals various situations: repayment of charges, taxes, maintenance, or indirect benefits. To illustrate the proposal, it is possible to cite the judgment of the Court of Cassation, civ Jan (Bouygues Méditerranée) which proceeds to a requalification in rural lease due to the economic burden borne by the borrower. The Court operates a control of the real and serious nature of the counterparty, joining the criterion of Article 1709 C. civ. (lease = provision of goods or services for a price). [...]
[...] On the other hand, the doctrine emphasizes that the presence of an accessory benefit is not sufficient to question the gratuitous nature of the contract, as long as it does not constitute a real counterparty (C. Bénos, Altruism in the loan for use contract). The draft reform project of special contract law (2022) proposed a re-reading of the loan for use by admitting the possibility of an interested loan for use, that is, not strictly free but without falling into the onerosity proper. This evolution reflects a desire to adapt the law to economic practice and the diversification of non-market exchanges, without betraying the spirit of the loan for use. [...]
[...] Conceived in 1804 as a charitable contract, the loan for use seemed to belong to an earlier era, far from commercial interests. However, a few centuries later, this mechanism is fully integrated into business relations, often between individuals. The loan for use, called commodatum is defined in Article 1875 of the Civil Code as the contract « by which one of the parties delivers a thing to the other for their use, on condition of returning it after having used it ». [...]
[...] Mauro, Permanence and evolution of commodatum, Defrénois : highlights the modernity of commodatum, capable of adapting to new forms of circulation of goods, while remaining a contract of trust II - The reintegration of the altruistic logic of the usage loan The first idea announced must be nuanced, in fact, despite an opening towards pecuniary interests, there is a certain desired preservation of gratuitousness this is maintained by a protective regime of the lender The preservation of the gratuitous foundation The core of the commodatum remains the gratuitousness, a condition of its qualification. The pecuniary interest should not be transformed into an economic counterparty; otherwise, we fall into the lease or rental. The personal and intuitu personae character remains: the loan rests on the trust and fidelity between the parties. The Court of Cassation has ruled as follows: Court of Cassation, civ. 1st Feb ? the lender can take back the thing at any time if no term has been set. This contractual flexibility stems from the non-commercial nature of the loan. [...]
[...] civ.), in addition, he must ensure its conservation and restitution. The lender must be able to recover the thing that was lent and can only be used within the contractually agreed framework. The Civ. 1st Nov (car loaned by a garage owner) decision recalls that the professional lender remains bound by an obligation to inform, but not by a responsibility for results: the loan does not become costly for this reason. The reform maintains a flexible balance, a contract open to the most interest which is framed by trust excluding any profitability. [...]
