Civil legal aspect of distinction of loan agreement from other types of agreements (loan, gift, rental of vehicle, housing, rental agreement, commercial concession)

Abstract

Contracts aimed at the transfer of property for use are diverse. Each of the incoming contract types has its own specifics due to certain systemic features (free use - a sign of gratuitousness, renting housing - subject and subjective features of legal relations, commercial concession – a sign of the subject). Accordingly, the internal classification of contracts aimed at the transfer of civil rights to temporary use can be made consistently on several grounds. All contracts on the basis of subject can be divided into contracts aimed at the temporary use of property (rent (lease) of a vehicle, housing, rental, loan), and contracts aimed at the temporary use of objects of exclusive rights (commercial concession). Within the framework of agreements aimed at the transfer of property for use, on the basis of payment are paid (rent (lease), rental, rental of housing, vehicle) and free (loan agreement).
 The author concludes that gratuitousness is an essential feature for a loan agreement, as well as for a gift agreement. It is determined that the sign of gratuitousness may follow from the essence of the relationship between the parties. In particular, it is expressed in certain actions, especially if previously such actions were free of charge. Speaking of gratuitousness, however, it cannot be concluded that this agreement has no property interest for the lender. Sometimes this is true, and sometimes property interest still takes place.
 It is proved that the loan agreement is combined with those types of lease, the systemic features of which do not contradict the factor of gratuitousness (vehicle loan, home loan, capital construction).
 It is proposed to make corrections to Part 3 of Art. 827 of the Civil Code of Ukraine on the possibility of applying the provisions of Chapter 58 of the Civil Code of Ukraine (Lease Agreement), as well as proposed additional Article 837-1 of the Civil Code on liability under the loan agreement.
 With the analysis of the outlined problem, it is concluded that for the loan agreement the sign of gratuitousness is decisive, which gives grounds to distinguish the loan from other types of civil law agreements.