What is a loan for use (“comodato”) and what is it for?

Question

José Manuel Alburquerque · Accepted Answer

A loan for use is the lending of a thing free of charge so that someone else can use it for a time and then return that same thing. It can be used to lend, without charging anything, a flat to a son or daughter, premises to an association, a car or a machine. If anything is charged in return, it is no longer a loan for use and becomes, for example, a rental agreement. It is governed by the Spanish Civil Code (“Código civil”), in Catalonia too, because the “Código Civil de Cataluña”, the Catalan Civil Code, does not deal with it. If neither a term nor a specific use was agreed, the owner can ask for it back whenever they wish, which is what is known as occupation by permission (“precario”). How it works The person who lends the thing, the lender (“comodante”), remains its owner. The person who receives it, the borrower (“comodatario”), only acquires the right to use it for the agreed purpose. No deed or document is needed, because it can be agreed orally and exists from the moment the thing is handed over. The main rules are these: The person using it pays the ordinary costs of use and upkeep. Extraordinary costs are borne by the owner, provided the owner is told before they are incurred, unless they are so urgent that there is no time to wait. If the borrower uses it for something other than what was agreed or keeps it longer than agreed, the borrower is liable for its loss even if this is due to a fortuitous event (“caso fortuito”), that is, one that could not be foreseen or avoided. If the owner knew of a defect in the thing and gave no warning, the owner is liable for any harm it causes the person using it. If the person using it dies, their heirs can continue to use it, unless it was lent with that particular person in mind. It should not be confused with a loan of money, in which an equivalent amount is returned rather than the same thing. That is a different contract, which the Spanish Civil Code calls a “simple préstamo” (simple loan). When it can be claimed back It depends on what was agreed: If a term or a specific use was set, the owner must wait until it ends. Before then, the owner can only ask for it back if they urgently need the thing. If neither a term nor a use was set and local custom does not settle it either, it is occupation by permission. The owner can claim it back whenever they wish. In case of doubt, the person using the thing must prove that a term or a use was agreed. To recover a home or commercial premises, permission is withdrawn in writing and, if the occupier does not leave, a possession claim against an occupier by permission (“desahucio por precario”) is brought in court, after first trying to reach an agreement, as the law generally requires. The occupier must not be removed by force and the locks must not be changed. This often happens with a home that parents lend to a son or daughter and his or her partner. If the couple separate and there was no agreement on a specific use, the “Tribunal Supremo”, Spain's Supreme Court, generally takes the view that it is occupation by permission. The parents can recover it even if the divorce judge has given its use to one of the two. Why it is advisable to put it in writing A signed document avoids arguments about what was agreed. It should state: That the use is granted free of charge. If the person using the thing pays anything, however little, it may be seen as a rental agreement, with different rules. If it is a flat, the fact that it is free also has consequences for the owner's income tax, which is a separate matter. What it is lent for and until when, or that the owner may ask for it back whenever they wish. Who pays each expense and in what condition the thing will be returned. If it is a flat, the prudent course is for the owner to keep paying the IBI (the local property tax) and the owners' association fees, so that they cannot be seen as a price.