Abstract

A special type of an agreement involving obligational relations between the parties, which consist in permitting to use a thing free of charge for a specified or unspecified time is a contract of lending for use. Under such contract the borrower assumes the right to use the thing lent and becomes obliged to bear the ordinary costs of maintenance. With respect to other expenses or outlays on the thing, the provisions concerning management of another person’s affairs without a mandate apply accordingly.

The phrase “ordinary costs of maintaining” used by the legislator is imprecise. The problematic issue is if in the case of lending residential premises for use the running costs are covered by “ordinary costs of maintenance”, or they constitute a form of remuneration for using the thing, i.e. are equivalent of rent under a lease contract. It seems that if such costs depend solely on borrower’s decision, then the borrower will be obliged to bear (e.g. the cost of telephone or internet in the premises). It is not so obvious as regards the costs that should be borne regardless of the existence of the lending for use relationship, i.e. the fixed costs, which the lender should have borne himself if he did not lend the thing for use to another person, e.g. taxes, insurance, any charges and other levies relating to ownership or possession.

If the borrower bears such costs as “ordinary costs of maintenance”, he becomes a “substitute” of the lender (replaces the lender). The lender profits in the amount equivalent to the costs, which he should bear if there was no lending for use contract. In this situation the contract loses the feature of gratuity and assumes the attribute equivalence. However, on the other hand, bearing the costs which in general make the use of the thing, possible is not equivalent to “a rent”, i.e. is not a form of consideration. The lender is not oblige to provide for the borrower. The lender extends sufficient help and kindness to the borrower by lending him the premises for use free of charge. At this point, the most important role should played by the motivation for concluding the contract.