ARTICLE VI: On Loan for Use and Precarium

1096. Loan for use (pret a usage) is a contract by which some movable or immovable thing is conceded gratis for use alone, under this law, that at the determined time it be restored in the individual. He who concedes the thing is called the lender for use; but he to whom it is conceded, the borrower for use.¹⁰

If the use of the thing is not conceded for a certain time, but at the will of the lender for use, the contract is called PRECARIUM (III, 745).

Loan for use is a real contract, which is perfected by the handing over of the thing; and it is essentially gratuitous; for when the stipulation of a price accedes, it passes into a lease of the thing. Its object can be any thing whatever placed in human commerce, provided it is not consumed by that use for which it is conceded, for example gold coins which are conceded for a time for display alone.

1097. • PRINCIPLES. I. The lender for use is held to permit the use of the thing and to undergo the peril of it. The reason for the first is clear from the definition itself. The reason for the second is that the lender for use always remains the owner of the thing. But a thing perishes for its owner (III, 747).

1. He is held to permit the use of the thing; whence he cannot reclaim it before the determined time or before the end has been obtained. Yet if he himself, from an unforeseen case, needed his thing immediately, he could reclaim it, even with equal damage of the borrower for use; because the condition is always considered tacitly to underlie: "unless meanwhile the thing is necessary to me." Austrian Code, n. 976, dissents.

2. He is held to undergo the peril of the thing; and therefore he must of himself sustain detriments arising from fortuitous chance. Likewise, he is held to extraordinary expenses which the preservation of the thing requires, and to disclosing its harmful vices.

1098. II. The borrower for use has a right to the determined use, and is held to preserve the thing diligently. The first is of the essence itself of the contract; the reason for the second is that he who has the benefit ought to have also the intrinsic inconvenience of the thing.

1. He has a right to the determined use, and therefore cannot use the thing for something other than that for which it was conceded. See nevertheless what we noted n. 1093. But he must restore the thing at the established time.

2. He is held to preserve the thing diligently, as a good father of a family; to undergo expenses joined with the ordinary use of the thing; likewise, to make extraordinary expenses which do not suffer delay; but, in this case, the expenses must be refunded to him by the owner, for example if he takes care of a horse laboring under a grave disease without his fault. If the thing, by his fault, has perished or been made worse, he is held to repair the damages; but not if these have arisen from the necessary use itself. He is not held concerning a merely fortuitous case, unless he is in culpable delay, or by a peculiar pact undertook the peril of the thing upon himself (cf. n. 920). See St. Alphonsus (III, 752; H. Ap., X, 137; Delama, n. 192; Austrian Code, 978 and 1311; Lehmkuhl, Cas. consc., I, n. 851).