CHAPTER III: ON LOAN FOR USE AND PRECARIUM

921. • Loan for use is a contract by which a thing is gratuitously conceded for use alone for a certain time, with the burden of restoring the same thing in individual.

Precarium, which is akin to loan for use, is defined: a contract by which the use of some thing is conceded to someone asking, yet revocable at the will of the one conceding. And in this precarium differs from loan for use, that it is revocable at the judgment of the one conceding.

Hence loan for use differs 1° from lease, by which the use of a thing is indeed conceded, but not gratuitously; 2° from deposit, by which a thing is handed over not for use but for custody; 3° from loan for consumption, by which a thing must be restored only in the same species.

Moreover the object of loan for use or precarium can be any things whatever, whether movable or immovable, placed in civil commerce, provided they are not consumable by that first use for which they are destined.

922. • Generally he ought to use the thing loaned to himself as a good father of a family; but specifically:

1° He cannot use the thing loaned except for the use either conceded to himself, or to which he prudently judges the lender for use consents, or for which the thing is destined from its nature; otherwise he abuses another's thing, and will be bound to repair all damages arising thence.

2° He ought to undergo the necessary expenses for the conservation of the thing, for example, to feed a horse loaned for use; but he is not bound to extraordinary expenses, for example, to care for a horse laboring under a grave illness without his own fault.

3° He ought to return the thing loaned for use at the prefixed time and at his own expense, even if it is not sought back; because the stated day interpellates for the master. If the time of restitution was not prefixed, the thing loaned for use ought to be restored as soon as it has furnished the requested use.

4° If the thing loaned for use suffers some detriment on account of the conceded use without fault of the borrower for use, the latter is not bound to compensation. If it has become worse by his juridical fault, he is bound to compensate in the external forum, and according to not a few Theologians also in the internal forum, since the contract was entered for his utility alone. Yet others deny this very probably, unless a particular agreement concerning this had intervened. Cf. n. 748.

923. • 1° He is bound not to seek back the thing loaned for use before the prefixed time, or at least, if this was not prefixed, before the borrower for use can use it; otherwise he will be held for the damage which the other has experienced from his untimely revocation, since he thus violated another's right acquired by pact. Except a loan for use in favor of the borrower alone, who dies before the prefixed time; or if the lender for use immediately needs the thing, even though the borrower for use would undergo equal damage thence.

2° He is bound to restore extraordinary expenses, urgent and necessary for conserving the thing, which the borrower for use underwent while he could not easily warn the lender for use otherwise.

3° He is bound to open to the borrower for use any harmful defects of the thing loaned for use which he knows; otherwise he will have to compensate the damage arising thence.

4° Finally he is bound to sustain the perils and detriments of the thing arising from a fortuitous event, delay, fault, pact, and special law being excluded, because the thing perishes for the owner.

See Smith n. 325. II.