Trust deed
The Prêt is “ a generic Convention - whose loan with use and loan of consumption are the two species - under the terms of which the lender gives a thing to the borrower, so that this one of serf, with load of restitution ”. According to Duraton, " " these two contracts have that in common that, in addition to the necessary assent in all the contracts, the handing-over of a thing is necessary for their existence: also for that they are called real contracts, in the doctrines . But part of the doctrines disputes this qualification of real contracts and sees a synallagmatic consensual contract there.
Example of this doctrinal dispute
This chapter is relating to the stop of the First Civil court of the Court of appeal of March 28th, 2000 .In this species, thanks to a loan agreement by a professional, a private individual acquired farm equipment. This trust deed provided that the lender was to pay directly with the salesman the amount of the loan after this last informed it of the supply of the material and if the borrower had subscribed a life insurance. The borrower filled all the requirements with the granting of the loan and in particular the subscription for the life insurance, but dies 3 months afterwards. The salesman addresses to the lender the delivery order of the material.
The heirs to the borrower assign the professional, who granted the credit, payment of the amount of the loan. The Court of Appeal of Grenoble gives right their request. The professional lender forms an appeal then, and reproaches the stop Court of Appeal for having considered that the trust deed was formed, whereas fault of handing-over of the funds, this last because of its real character, was not formed. The Court of appeal must answer the following question: Is the loan of an amount of money authorized by a professional of the credit of real or consensual nature? The High jurisdiction rejects the appeal with the reason that the loan authorized by a professional of the credit is not a real contract . It carries out here a reversal compared to its traditional Jurisprudence in which it affirmed that a loan of consumption, real contract, is carried out only by the handing-over of the thing lent to the borrower himself or a third who receives it on behalf of the borrower . The first inflection with this principle related to a certain type of loan: “the loans governed by the L312-7 articles and following of the code of consumption do not have the nature of real contract”. Then in the stop with accompanying notes, the principle is again inflected for the trust deeds of money concluded with professionals from the credit.
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