Is the loan agreement a real contract or not? The consequences are not neutral, since if the USDA loan qualifications agreement is considered as a real contract, the failure to realize the loan, i.e. the refusal to respect the commitment to lend the funds, can give rise only to damages and not forced execution of the promise.
The Court of Cassation had already had the opportunity to express an opinion on home savings and considered that the bank, at the end of the savings phase, was obliged to grant the USDA loan qualifications to which it had been obliged at the conclusion of the plan or account agreement ( Civil Cass.1: 3.6.97 and 27.5.99 ).
At the time, the doctrine had considered that these were judgments made in the particular field of real estate loans where the protection of the consumer is strengthened. In this case, the contract was consensual, since it did not seem normal to leave credit institutions the option of refusing or granting the promised loan.
The Court’s decision of 28.3.00 is much broader in that it considers that the loan made by a credit professional is not a real contract USDA loan qualifications. No distinction should be made depending on the nature of the loan; the professional lender is, in all cases, bound to fulfill the loan promise he has made.
Cass. com., 15 September 2009, appeal n o 08-16504, unpublished
“Whereas, having discarded the existence of a loan, the judgment states that GAEC has placed the window of which it was the owner at the disposal of Fergus, has installed it, has entered into a maintenance contract; with a company that intervened to remedy a malfunction and ensure cleaning, and deduced that he was responsible for the furniture and its operation; that the Court of Appeal did not apply the tort liability, but held that the GAEC had, under the contract binding it to the company Fergus, the obligation to maintain the window and to to guarantee a normal use; that the plea is unfounded ”
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From loan to use in business relations. – Free loan for use and business relations do not mix! The altruistic and disinterested spirit that reigns over the commodity (the term having been removed by the law of 12 May 2009 called ” simplification of the law “) justifies just as much the real nature of this contract as the lightened responsibility of the lender. absence of the borrower’s right of retention or the regime of restitution of the thing lent (although … v. the following reported judgment). But these rules established in favor of the disinterested lender are no longer justified when the service ceases to be rendered in […].