Case 7: promises to loan goods without charge

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formed, and it is enforceable. In that case, in principle, the lender cannot recover the thing before the end of the term, and the borrower must return it then. In this case, then, it would seem that Albert may keep the car, and Barbara cannot recover it before the three months have expired. An exception, however, is created by art. 1889 of the Civil Code. It provides that if the lender has an ‘urgent and unforeseeable need for the thing, the judge may, depending on the circumstances, force the borrower to return it’.

This exception can be explained by the fact that the lender is doing a favour for his friend. The loan arises because they are friends rather than because of the borrower’s need. The essential characteristic of the contract of loan is that it is without compensation. In the absence of an express term to the contrary, the borrower is not obliged to pay for the use of the thing. Since such a loan is aimed at doing a favour for a friend, it should not be turned upside down to cause a loss to the lender. Nevertheless, the lender’s right to recover the thing in advance of the time agreed contravenes the principle of the enforceability of contracts enshrined in art. 1134 of the Civil Code. It would seem to allow the promisor to withdraw his promise at will (condition potestative) except that it can only be exercised in circumstances outside his control. Since it contravenes the general principle, even if it is justified in the context of an arrangement between friends, it must be interpreted restrictively. Indeed, interestingly enough, art. 1889 can be seen as a specific application of the principle of imprévision: the principle that contracts may not be binding in the event of changed or unforeseen circumstances. This principle has been continually rejected as a matter of general contract theory in French private law.

Under art. 1889, to recover the car by court order before the end of the term, Barbara must prove that she has an urgent and unforeseeable need to have her car back. The question whether she does is left to the trial court judge. Moreover, a literal interpretation of the text suggests that the judges are not obliged to order the return of the object loaned before the end of the term but may exercise their discretion in the matter. In other words, the lender’s ‘urgent and unforeseeable need’ is a necessary but not sufficient condition. The reason may be that art. 1889 is an exception to the general principle of art. 1134 that contracts are to be enforced, and so it is made subject to a further exception by taking the borrower’s situation into account.

In a recent case, a person had made a loan for use of an apartment for residential purposes for an indefinite term to his brother. The court held

that the heirs of the lender could not recover the apartment since they had not met the test of a need that was urgent and unforeseeable and that outweighed the borrower’s need to use the thing loaned.1 This interpretation of art. 1889 seems to limit its scope considerably, although it should be stressed that this case dealt with a contract of unspecified duration, unlike the arrangement between Barbara and Albert. In his comment to this case, A. Bénabent observed that one could read the case narrowly so that the outcome depends on the fact that an apartment was loaned. The court would then be protecting the borrower’s right to be housed. Nevertheless, it is possible, he notes, to read it more broadly so that ‘someone lending his car for more than one journey will have to wait to take it back as long as the borrower needs to drive it’. He thinks that in the future, to avoid such results, a requirement that all such loans be in writing should be imposed by analogy. In any event, whether the case should be read broadly enough to include the loan of a car is speculative. It could be argued that different considerations apply once a fixed term has been agreed upon, as here, since the loan is not open-ended from the outset.

There is relatively little case law under arts. 1888 and following of the Civil Code, perhaps because a commodat concerns arrangements between friends and family.2 Other cases which we have already cited3 concern the loan of apartments by parents to children and their families which the parents want to recover when their children’s marriage breaks up. The case law is contradictory. In the first case cited, which is published in the Bulletin de la Cour de Cassation, and therefore is more authoritative than the second, the daughter-in-law and her children were allowed to keep the apartment. In the second, on similar facts, the lender could recover it. Commentators have suggested that the apparent contradiction can be explained by the fact that the lender’s need was not established in the first case. Moreover, in the first case, the borrowers’ divorce was pending whereas in the second case it had been final for a number of years, and it was claimed that the apartment should have been subject to the divorce settlement.

Also, art. 1889 must be seen in context. It is an exception or a limitation

1 Civ. 1, 19 Nov. 1996, D 1997, 145, note A. Bénabent who criticizes the solution.

2For scholarly opinion on the commodat, see G. Cornu, RTDCiv. 1980, 368, who suggests, ‘common sense and equity should govern in the context of loans for the use of a thing’; J. Carbonnier, note TGI Briey, 30 June 1966, JCP 1967 ed. G. II 15310, who calls it ‘a

malleable contract at the border-line between law and non-law’.

3 JCP 1994, II, 2239, note V. Morgand-Cantegrit; D 1994, 244, note A. Bénabent.

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to the general rules set out in art. 1134 of the Civil Code. According to these general rules, a contract cannot be terminated in advance of the term without mutual consent. Moreover, the term is set by the parties, and it is not a question of ordre publique. Consequently, the agreement of the parties should override art. 1889, although, in this case, there was no attempt to do so. The reason for the provisions of art. 1889 can be found in Pothier: no one is presumed to want to do a favour for someone to his detriment.4 Thus, the provision rests on a presumption about the intentions of the parties.

Nevertheless, it must be stressed that art. 1889, as noted, grants a discretionary power to the judge to decide on an equitable basis whether the object should be returned. Barbara will have to go to court to recover her car, and the trial judge has absolute authority (pouvoir souverain d’appréciation) to decide whether the conditions of art. 1889 are met because that question is considered a matter of pure fact.5 It would seem that these conditions are met if Barbara has hurt her foot and cannot walk but can drive. But it is just conceivable that the court would decide otherwise if, for example, Albert had taken a job on the strength of having the use of the car.

The questions that arise are different if the car has not been delivered. In that event, a contract of loan for use has not been formed. Still, it does not follow that there is no enforceable contract between Barbara and Albert. Curiously, despite the absence of a delivery which is necessary to form a contract in rem, it is still possible under French law to reclassify Barbara’s promise as an offer to lend (promesse de prêt), which is in itself a binding contract.

In our view, art. 1889 cannot be applied to an offer to lend. It does not apply because the car has not been delivered, and therefore a contract of loan for use has not been formed. Consequently, Barbara cannot justify her refusal to deliver the car by proving her ‘urgent and unforeseeable need’ for it as that article provides. Nor can she do so under the general principles of French contract law because, as mentioned earlier, the principle of relief for changed and unforeseen circumstances (imprévision) has been consistently rejected.

Supposing that Barbara’s promise is an offer to lend, we must consider whether it can be enforced by specific performance, so that Barbara is required to deliver the car, or by an award of damages. The Cour de cassa-

4 For an explanation of commodat, see F. Grua, Juris-classeur, arts. 1888–9.

5Civ. 1, 3 Feb. 1993, Bull. civ. I, no. 62; JCP 1994, II, 2239, note V. Morgand-Cantegrit; D 1994, 249, note A. Bénabent.