When regulating relations connected with the rights to things, one always, but very important question always arises: how free is the transaction, the subject 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 former may be represented by rent, sale, leasing. Well, the most striking example of the latter is gratuitous use.
This institute of contract law conducts its “pedigree” with Roman law. Such a long existence is explained quite simply: gratuitous use is a flexible tool for the temporary circulation of things. To understand this, it is enough to study the theory of its regulation.
What can be provided for free use?
This kind of agreement implies that only “non-consumable” things can be transferred under it. And this, in turn, means that in the process of performance by counterparties of obligations to use them, all the main characteristics remain in their initial or close form. Therefore, this type of transaction should be called “gratuitous use of property”, because civil law and science include in the concept of “things” and other objects that, due to their characteristics, cannot remain in their natural, original form during use.
In addition, property in free use (as an object of the contract) has another characteristic, it is individually defined. That is, when agreeing to conclude a transaction, counterparties are required to distinguish the transferred property from a number of similar ones with the help of a special clarification.
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 when it comes to movable property.
Signs of a contract
Gratuitous use is an institution based on certain signs, the main of which is its gratuitousness. This qualification means that the lender (the person who provides things) does not expect that in exchange for his actions the lender will pay a fee in the form of material values. However, the former is entitled to assume and expressly indicate in the contract that the transaction costs will be borne by the counterparty, including those related to the maintenance of the property.
The second sign is the lengthy nature of the contract. Gratuitous use of property may be concluded for a period of up to ninety-nine years, if we are talking about real estate. In relation to those moved by science and legislation, the time period is not established at all. And, therefore, the parties can agree on an arbitrarily long period.
The third sign is a double interpretation of the moment the treaty enters into force. So, the parties themselves can determine this by 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 parties have a special legal status. The contract expressly provides that property in free use imposes a certain range of obligations on the participants in the transaction. The lender is obliged to transfer the thing into use, and the lender - to accept, save and return it in kind.
These signs should be taken into account when drawing up the contract, as they form the three-stage structure, which is fixed by written fixation. Namely:
- definition of property;
- the term of its use;
- return of property.
And, therefore, when compiling the text of the contract, it seems quite reasonable to use theoretical constructions in practical application.