The loan (or loan for use) is a contract by which one party (lender) delivers an asset to another (borrower) to use it free of charge for a certain time and for a specific use.
The loan should not be confused with the lease, as there is no fee for the enjoyment of the goods received, nor with the donation, since in the donation, there is the transfer of ownership of the property, while in the loan there is the obligation of restitution of the good.
Neither can the free loan be confused with the free deposit, as in the free loan it is allowed to use the goods received, while in the deposit this right is excluded.
Gratuitousness: we have mentioned that those who deliver the property (including immovable property) do not receive any consideration in the free loan. In fact, the contract remains free even if it is charged to those who use the asset, for example, the payment of only the condominium expenses (1). If the contract is not free, it will be referred to as a rental contract, in the case of movable property, or a lease contract in the case of real estate.
Availability of the asset: it is not necessary to be the owner of a thing to grant it on loan. In fact, anyone who has the availability can give it on loan (if it is not contrary to public order rules), even the borrower himself with the consent of the bailor.
In case of legal communion of assets, the assets must be given on loan with the will of both spouses. However, if one of the spouses grants an asset without the knowledge of the other, the latter, if he has not immediately challenged the contract, must respect it.
Purpose: non-fungible movable goods (not money, but for example plants, machinery) and, in general, non-consumable goods, registered goods (cars, motorcycles, boats, etc.), real estate can be granted on loan.
Form: except for the loan of real estate, no form is prescribed, therefore it can also be stimulated orally. However, the written form is recommended as it facilitates proof and makes it easier to resolve any disputes. In particular, he recommends it for the loan of motor vehicles to be able to easily prove to be the legitimate owners.
For real estate, the loan agreement must be stipulated in writing and registered with the Revenue Agency within 20 days of its signing, paying a registration tax of € 168.00 (2).
The loan of movable property, on the other hand, must be registered only in case of use.
In the loan agreement, to avoid any conflicts, it is always advisable to include:
1. the description of the property and the state in which it is at the time of delivery;
2. its intended use;
3. the duration.
Duration: the parties may decide whether or not to set a date for the return of the goods.
If a term is set, the borrower must return the asset, even if the lender has not requested it. If the bailor dies before the expiry date, his heirs take over the obligation to allow the borrower the enjoyment up to the established term.
If, on the other hand, a deadline for delivery has not been set and this is not even inferable from the use for which the thing is intended, the lender can request its return at any time without having to justify anything. In this case, the borrower is obliged to return the thing immediately.
Obligations of the borrower: he has the obligation of conservation and custody of the asset that persists until the moment of the return of the asset. The borrower must provide for the ordinary maintenance of the asset, bearing the necessary expenses. Ordinary expenses also include utility costs (water, electricity, gas, etc.). If you make improvements that were not necessary or urgent, these remain at your expense if you did not agree with the bailor.
Liability of the borrower: he is responsible for the perishing or deterioration of the thing also for reasons not attributable to him. This can happen when:
– use of the asset for a use other than that agreed;
– use of the asset for a longer period of time, unless it fails to prove that the asset would have deteriorated or perished in any case;
– has not made an expense, even extraordinary;
– he has not stolen it by replacing it with his own good, or if, being able to save one of the two things, he has preferred his own;
– the property has been valued.
The borrower is not responsible if he proves that the deterioration or deterioration was caused by chance or by the ordinary use of the property.
Withdrawal: the bailor can dissolve the contract if:
– the borrower has not guarded or preserved the asset;
– the borrower made use of the asset for a use other than that established;
– the borrower has, in turn, granted the good consent of the lender on loan;
– there is an urgent and unforeseen need for the good;
– there is no deadline;
– in the event of the death of the borrower even if the term has not expired.