Case

Barbara promised Albert that he could use her car without charge for three months while she was on vacation. She now needs the car because she cancelled her vacation plans after injuring her left foot. Can she have it back? Does it matter if 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? Does it matter if Albert has taken a job that requires him to have a car but does not pay enough for him to rent one?

Discussions

FRANCE

Under French law the arrangement made between Barbara and Albert would constitute a contract of loan for use (prêt à l'usage or commodat). In such a contract, the lender gives a thing to the borrower for his use which the borrower must later return. Accordingly, it is governed by arts. 1875 and following of the Civil Code.

Such a contract is defined as a contract in rem which means that it is formed upon delivery of the thing. It is therefore an exception to the general principle by which contracts are enforceable upon a mere exchange of promises. It does not follow, however, that no contract has been made if the lender has not made the delivery by which a contract of loan for use is formed. Barbara and Albert's arrangement can be classified instead as an offer to lend (promesse de prêt), which is an enforceable contract. Which kind of contract has been formed, however, depends on whether delivery has been made. We will discuss each alternative.