EN EL COMODATO Y EN EL SIMPLE PRÉSTAMO O MUTUO SE ENTREGA UN BIEN QUE DEBE SER RESTITUIDO POSTERIORMENTE.

Abstract

Our Civil Code conceives the loan agreement as a real agreement. Article 1740 states that one party delivers, not that it undertakes to deliver, and this is done in counterpoint to the future obligation of repayment, as maintained in the Supreme Court's rulings of 27 March and 11 June 1999. Nevertheless, outside the regulation of the Civil Code, there are certain loan arrangements of a consensual nature that could be considered pre-contracts or preliminary accords, depending on the circumstances. This occurs in the Consumer Credit Act, where the lender grants or undertakes to grant a loan to the consumer. In parallel, we shall see that the commodatum is a loan of use, whereas the commodatary has no intention of consuming the thing, but merely of using it, while the simple or mutual loan is a contract whereby one of the parties delivers to the other a quantity of money or some other consumable thing on the condition that the recipient will return the same amount of the same thing of the same quality.