Lending, Deposit, and Mandate: Key Legal Concepts

Lending

Fungible Tooling

• Transfer of ownership
• The borrower is only relieved by restoring the very thing borrowed.
• Transfer of a third thing is prohibited.

Mutual Loan

• Real, non-fungible items
• Consumer Loan
• Transfer of ownership
• Allows the sale of the thing loaned
• The borrower is relieved by restoring something of the same species.

Objective Theory: To give someone a property that is just as good because it appears that whoever has possession has the animus, or the will, to keep the good.

Subjective Theory: For someone to have ownership of something, they must have the body (a thing) and the animus (willingness to keep the good).

Transfer of possession and charging for it is not lending but a rental.

Deposit

Concept: A contract whereby a contractor (receiver) receives a movable object to keep until the depositor claims it (Article 627). Its main purpose is to guard the things of others.

• Inventor: The one delivering the thing to be watched.
• Depositary: The one who has the duty of care.

Legal Nature and Characteristics

• Real: Requires tradition.
• Gratuitous: Unless there is an agreement to the contrary if it results from business or activity, or if the depositary practices the profession (Article 628).
• Unilateral: When an employee is required to repay.
• Bilateral: Generates damage, loss (blameless for the depositor/owner), but the depositary must prove that they were at fault. If the depositary is at fault, they are responsible for the loss.
• Object: Must be a movable body.

Obligations of the Depositary

1. Save and keep the thing deposited with the same care as you would treat your own thing (Article 629).
2. Restore the thing with fruits, plus when the depositor demands, even if the contract set a deadline for repayment.

Mandate

Concept: Operates the office when someone else gets the power, in your name, to practice acts or administer interests (Article 653).

Features

• Bilateral: Free (can be costly when a fee is agreed upon).
• Very personal: It is based on trust.
• Consensual, not solemn (Article 656), unless there is a power of attorney.
• Mandator: The one who sends (asks) for someone to perform some act. (e.g., I want a second copy of my IPVA. I make a proxy and entrust someone to go there and get it for me.)
• Trustee: The one who performs an act in place of another person.