Gratuitous Use: Theory at the Service of Practice

When regulating relations related to rights to things, there always arises one, but very important question: how free is a transaction, the object of which are inanimate objects? Consequently, in the theory and practice of civil law there is a certain tradition of dividing them into paid and unpaid. The first can be represented by leasing, buying-selling, leasing. Well, the most striking example of the second is gratuitous use.

This institution of contract law leads its "genealogy" from Roman legislation. Such a long existence can be explained quite simply: gratuitous use is a flexible instrument of temporary turnover of things. To understand this, it is sufficient to study the theory of its regulation.

What can be granted for free use?

This kind of contract implies that only "non-consumable" things can be transferred through it. And this, in turn, means that in the process of performance by contractors of duties on their use, all the main characteristics remain in the initial or near to it form. Therefore, this type of transaction should be referred to as "gratuitous use of property", because Civil law and science include in the concept of "things" and other objects that, by virtue of their characteristics, can not remain in their natural, original form during use.

In addition, property in gratuitous use (as an object of the contract) has one more characteristic, it is individually defined. That is, agreeing on the conclusion of the transaction, counterparties are required to allocate the transferred property from a number of similar ones with the help of a special specification.

It should also be remembered that gratuitous use applies to both movable and immovable property. But the first is subject to a detailed description. This is due to the fact that the legislator obliges the counterparty to "return the thing in kind", which is much easier to do if it is a matter of movable property.

Signs of the contract

Gratuitous use is an institution built on certain grounds, the main of which is its gratuitousness. This qualification means that the lender (the person who provides the things) does not expect that in exchange for his actions the borrower will pay compensation in the form of material values. However, the former has the right to presume and directly indicate in the contract that the costs of the transaction will be assigned to the counterparty, including those related to the maintenance of the property.

The second sign is the long-term nature of the contract. Gratuitous use of property can be concluded for up to ninety-nine years, if it is a question of immovable things. With respect to the laws of science and law, the time gap is not established at all. And, consequently, the parties can agree on an arbitrarily long term.

The third sign is a double interpretation of the moment the treaty enters into force. So, the parties themselves can determine such, choosing between the moment of signing or the moment of actual transfer and fixing it in the text of the transaction.

The fourth sign is that both sides have a special legal status. The contract expressly provides that the property in gratuitous use imposes on the bargain participants a certain range of responsibilities. The lender is obligated to transfer to use a thing, and the borrower - to accept, save and return it in kind.

It is necessary to take into account the specified signs when drafting the contract, because They form a three-stage structure, which is fixed with a written fixation. Namely:

- the definition of property;

- the period of its use;

- return of property.

And, consequently, drawing up the text of the treaty, it seems reasonable to use theoretical constructions in practical application.