spain

180 the enforceabilit y of promises

can be interpreted in different ways. According to legal scholars, a fair motive can be, for instance, an unexpected and urgent need for the thing loaned.22 Therefore, in a case like this one, Barbara could terminate the loan for use.

The fact that Albert has taken a new job which requires him to have a car is not relevant because the termination of the contract is in this case allowed by the statute whatever the situation of the other party might be.

italy

Barbara can have her car back. The result is the same whether she told Albert he could not have the car a week before she was supposed to deliver it or a week after she actually did, although the legal explanation is slightly different.

If Barbara actually delivered the car, the relationship is governed by the Civil Code rules that govern the contract of loan for use (comodato).23 It is a nominate contract and a contratto reale or contract re, which means that it is formed when the object in question is delivered, as in the case of a contract of deposit.24 Also, such a contract must be gratuitous (art. 1803(2)).

Article 1809(2) provides that the lender (Barbara) can ask for the immediate restitution of the object loaned (the car) even before the expiration of the time limit if she has an urgent and unforeseen need for it. So she would be able to demand its return here. The case law does not require the need to be very compelling.25 The only limits are probably the mere arbitrary demand of the lender or some need that was clearly foreseen when the contract was made.

Before delivery, Barbara’s promise is not legally binding according to the Italian case law because it lacks a causa, at least in the sense of an economic interest of the lender in performing. It might well be considered merely a courtesy promise.26 Therefore, as before, Barbara can get her car back, but this time because no contract was formed.

22See J. B. Machado, ‘Pressupostos da Resolução por Incumprimento’, in Estudos em Homenagem ao Prof. Doutor J. J. Teixeira Ribeiro, II-Iuridica (1979), 343; Lima and Varela, Código Civil Anotado, vol. II, 759.

23See O. T. Scozzafava, ‘Il Comodato’, in Rescigno, Tratt. di dir. priv. 12 (1985), 611; Giampiccolo, ‘Il comodato e il mutuo’, in G. Grosso and F. Santoro Passarelli, Trattato di diretto civile (1972), 3; F. Carresi, ‘Il comodato. Il mutuo’, in Vassalli, Tratt. di dir. civ. 8:2

(1954), 5; E. M. Barbieri, ‘Il comodato’, V. Napoletano, E. M. Barbieri, and M. Novità, ‘I contratti reali’, in Giur. sist. civ. e comm. (1979), 345; R. Teti, ‘Il comodato’, in Digesto 3 (1988), 37. 24 See the discussion of Case 5.

25See Cass. civ., 5 Feb. 1987, no. 1132; Cass. civ. 2652/1963.

26See R. Sacco, ‘Il Contratto’, in Vassalli, Tratt. di dir. civ. 6:2 (1975), 491.

For some scholars, that promise could be considered as part of the negotiations leading towards a contract of loan for use, so that Barbara’s refusal to keep the promise could be analysed under the principles governing pre-contractual liability (see art. 1337 of the Civil Code). Under these principles, sometimes, a party can recover damages incurred in reliance that a contract would be completed. Here, however, the reliance would not have been justified given the peculiar kind of contract that the parties were about to conclude. For reasons already discussed, a person would not be justified in relying even upon a completed contract of loan for use.27

austria

There are two possible ways of describing Barbara’s agreement with Albert. First, it might constitute a contract of loan for use (Leihvertrag). According to Austrian law (§ 971 of the Civil Code), this is a gratuitous contract.28 If the contract is made for a certain time period, the lender does not have the right to ask the borrower to return the object before the agreed time. Even if he needs the object urgently himself, he is not entitled to demand its return (§ 976). Barbara therefore cannot have the car back.

A contract of loan for use is a real contract, meaning that it is formed by the delivery of the object in question (see § 971 of the Civil Code). A promise to loan an object constitutes a pactum de contrahendo. According to § 936 of the Civil Code, such a contract is subject to a clausula rebus sic stantibus: a party can withdraw if circumstances change sufficiently. Barbara would therefore have the right to cancel the contract if she discovered that she will need the car herself provided that the car has not yet been delivered to Albert.

The second possibility is that the contract constitutes a Prekarium (§ 974). In that event, the lender has the right to claim the object back at any time.29 If it does, Barbara can have the car back.30

In neither case does it matter if Albert’s job requires him to have a car. The fact that it did, however, could be an indication that a contract of loan

27See Marini, Promessa ed affidamento, 295.

28If the borrower has to make a payment for the use, the contract constitutes a rental agreement. Such an agreement is governed by §§ 1090 ff. of the Civil Code.

29See Koziol and Welser, Grundriß, vol. I, 358.

30Therefore it is not necessary to ask whether Barbara had the intention to bind herself legally. It is only necessary to ask whether Barbara reserved the right to claim the car back at any time.

182 the enforceabilit y of promises

for use was concluded since he would not have wanted Barbara to be able to reclaim the car at any time.

germany

A loan for use (§§ 598–606 of the Civil Code) is not a mutual contract because only the lender is obligated: he must allow the borrower to use something for some period of time without remuneration. Neither is it a gift because in a gift something is given away forever. The parties can enter into a loan for use without the formalities necessary to make a promise of gift binding (see Case 1). As in the case of every contract, however, there has to be the intention to be legally bound. But in case of a gratuitous loan for use, the requirements for proving this intention are not very high. Therefore, we have a binding contract here, especially in view of the comparatively long duration of three months which would be very unusual for a mere favour.

A lender may terminate the contract before the agreed point of time if he needs the thing loaned for a reason of which he was unaware when he promised to loan it (§ 605(1) of the Civil Code31). Barbara could not have known that she would have to cancel her vacation and would therefore need her car earlier. But she chose a moment that was inopportune for the borrower, and he could therefore claim a violation of good faith (§ 242 of the Civil Code32). In such a case, the interests of both parties have to be weighed against each other by the court.

The interests of the lender are generally regarded as more important than those of the borrower because, in principle, the law gives him the right to terminate, and because he did not charge anything. Albert’s interests are less important because he did not pay anything in return.33 Therefore, a court would only regard a moment as inopportune if there were exceptional circumstances involved in the case.

On these principles, Barbara can have the car back because she could not foresee her injury. She is not liable for damages because the right to terminate the contract is granted to her by the law, and she cannot be liable for acting lawfully.

Whether the car has already been delivered when Barbara told Albert

31‘The lender may terminate the contract: (1) if he needs the good because of unforeseen circumstances . . .’

32The debtor has to perform his duties with regard to good faith and ordinary usage. But the notion of good faith is applied generally in order to limit the exercise of rights.

33Entscheidungen der Bayerischen Obersten Landesgerichtes in Zivilsachen 32, 466.