tion has held that a promise to loan money cannot be specifically enforced since it is not the same as a contract of loan.6 A promise to loan, according to the Court, is a contract that contains an obligation ‘to do’ something (see Case 13 for an explanation). Under art. 1142 of the Civil Code, such an obligation cannot be specifically enforced if so doing would constitute an intolerable infringement of the individual rights of the defendant. It would seem that the same result would be reached with an offer to lend something for use.

If Albert cannot have the obligation specifically enforced, he might claim damages under art. 1147 of the Civil Code which is the general provision that damages will be awarded for breach of a contract. He might claim the cost of renting a new car to get to work. The promisee was awarded damages in the case just described. Nevertheless, in that case, the offer to lend was made in relation to a consumer loan, that is, in relation to a contract that is onerous rather than gratuitous. In our view, it is doubtful that Albert can claim damages because Barbara’s gratuitous promise does not seem to be truly analogous. The surrounding context is entirely different, and the arrangement is one between friends. In our view, the fact that the promise was made without compensation will probably have a decisive influence on the court’s decision whether or not to award damages. Even if the court decided to do so, in the context of a loan between friends it is a matter of speculation whether a court would award Albert damages as high as the cost of his hiring another car.

It is interesting to note, then, that how the contract is analysed may have little effect on the liability of the parties and their ability to enforce the promise. In practice, Albert may not have a remedy even under a consensualist approach which does not require delivery for a contract to be formed. The reason is the context of the promise – an arrangement between friends – and the fact that such a contract follows the original conception of a loan for use (commodat). It is entered into without compensation. Perhaps the dearth of case law is indicative. Enforcement is rarely sought, perhaps in the expectation that it will rarely be granted. Res ipsa loquitur?

belgium

In this case, the contract is one of loan for use (prêt à usage, commodatum) (arts. 1875 f. of the Civil Code). It is a ‘real contract’ (contrat réel, contract

6 Civ. 1, 20 July 1981, Bull. civ. I, no. 267, Rép. Def., art. 32915, no. 45, p. 1085.

tract’,10 the only one remaining under the new code.11 To conclude a ‘real contract’, not only must the parties agree, but in addition the object of the contract – the thing loaned – must be handed over.

Because loan for use is a real contract, it is not clear whether a mere agreement to loan an object is a valid contract. The principle of freedom of contract would seem to allow the parties to make a preliminary contract which has, as its object, the conclusion of a contract of a loan for use.12 But if so, does it not become pointless to recognize a loan for use as a real contract? Not really. Even if such a preliminary contract is binding, there is still a good reason to distinguish a separate contract of loan for use and to give specific rules for it.13 Because such a contract is gratuitous, it is usually found in informal relations between relatives, friends, and neighbours who do not usually make arrangements about the loss of the object, the right to have it back, and so forth. Therefore, the decision of the legislator to regard loan for use as a ‘real contract’, though debatable, is not undercut by recognizing the validity of a preliminary contract to conclude a loan for use. The ordinary rules on formation govern the preliminary contract.

An agreement is not a legally binding contract if it was not meant to have legal effect. This follows from the very notion that the formation of a contract ‘requires an intention to produce legal effects’ (art. 3:33 of the Civil Code).14 Here, Barbara does not seem to have intended her promise to have had any legal effect. Therefore the agreement is not legally binding unless Albert justifiably believed that she did (art. 3:35). Whether Albert was justified in understanding that Barbara wanted to bind herself depends on the circumstances of the case. It may be relevant whether he acted in reliance, for example, by refusing an offer made by another friend. Here, however, the statement of the facts does not show that Albert believed that Barbara intended to conclude a binding contract. The result is not clear, however, since it is not clear what the parties intended, what they believed the other party intended, and what they could reasonably rely on.

It does matter if Barbara told Albert he could not have the car a week before she was to deliver it or a week after she actually did. If she actually gave the car to Albert, it is likely that a contract of loan for use was

12See PG Boek 7, 883; Pitlo/Salomons 209; O. K. Brahn, ‘Het irreële karakter van het reële contract van bruikleen in het Nieuw Burgerlijk Wetboek’, NJB 1983, 568.

13Though one may doubt whether it should be a ‘real contract’. This doubt has been