Mandate Contract
Explanation
These legal texts address provisions related to two different contracts, namely the loan contract and the agency contract. The text clarifies specific obligations incumbent upon the borrower in a loan contract, in addition to the nature of the agency contract in terms of whether it is gratuitous or remunerated.
Regarding the loan contract, the borrower has an obligation to return the borrowed thing at the place where the contract was concluded. This provision applies in the event the parties did not agree on another place for the return.
In addition, the borrower alone bears all expenses related to receiving and returning the borrowed thing. This means that the lender does not bear any financial burdens related to the delivery and return process.
As for the agency contract, the general principle is that the agency is without compensation. However, the parties may expressly agree to determine a remuneration for the agent in exchange for their services.
The law excepted three cases in which the agency is not considered gratuitous, which are: if the agent performs the service within the framework of their profession, or if the agency is between merchants for commercial acts, or if custom dictates the payment of remuneration for these acts.
Finally, the law provides flexibility in drafting the agency contract. The agency may be subject to a specific condition, and it is also permissible to specify a term for the beginning of its validity or a term for its expiration.
Official legal articles
Think deeper
Why did the legislator except certain cases and consider the agency implicitly remunerated in them, and how is this related to the nature of the agent's work or the capacity of the parties?
Flashcards
Where must the borrower return the borrowed thing if there is no agreement to the contrary?
At the place where the loan was concluded.
Who bears the expenses of receiving and returning the borrowed thing?
The borrower.
What is the general principle regarding compensation for an agency?
The agency is originally without compensation, but remuneration may be stipulated.
When is the agency considered remunerated if it is between merchants?
If it is for commercial acts.
Is the agency considered gratuitous if the agent performs the services by virtue of their profession?
No, it is not presumed to be gratuitous in this case.
Is it permissible for the agency to begin on a specific future date?
Yes, it is permissible for it to take effect starting from a specific term.
Practice questions
Where is the borrowed thing returned in the absence of an agreement to the contrary?
The borrower returns the thing at the place where the loan was concluded without contrary agreement (Article 764).
Who bears the expenses of receiving and returning the borrowed thing?
The expenses of receiving and returning the borrowed thing fall on the borrower by law (Article 765).
What is the basic rule regarding the agency's remuneration?
The agency is originally without compensation, but there is nothing preventing the stipulation of remuneration (Article 770).
In which of the following cases is the agency not considered gratuitous?
The agency is not considered gratuitous if the agent performs the required services by virtue of their profession (Article 770).
Can the agency be subject to a condition or a term?
The agency may be subject to a condition, and it may take effect from or until a specific term (Article 771).
If two merchants contract an agency for commercial acts, is gratuitousness presumed?
The agency is not presumed to be gratuitous if it is concluded between merchants for commercial acts (Article 770).
Case problems
Sami borrowed an agricultural machine from his neighbor Rami in a mountain village. They did not agree on the place of returning the machine or who bears the transportation costs. At the end of the borrowing period, Sami asked Rami to come and collect the machine from his field and pay its transportation costs. Is Sami entitled to do this?
Model answer
Sami is not entitled to do this.
The borrower must return the borrowed thing at the place where the loan was concluded absent a contrary agreement (Article 764).
The expenses of receiving and returning fall on the borrower under the law (Article 765).
Therefore, Sami must return the machine to the place where the loan was concluded and bear the expenses of this return himself.
Self-grading rubric
A commercial company appointed a lawyer to represent it in a commercial lawsuit. No details regarding fees were mentioned in the agency contract. After the lawsuit ended, the lawyer demanded his fees, but the company refused on the pretext that the agency is originally gratuitous and no remuneration was agreed upon. Is the lawyer entitled to demand remuneration?
Model answer
Yes, the lawyer is entitled to demand remuneration.
The agency is originally without compensation, but the law excepts cases where it is not presumed gratuitous (Article 770).
Among these cases is if the agent performs the services contracted for in their agency by virtue of their profession or trade.
Since the lawyer practices this work by virtue of his profession, the agency is not considered gratuitous and he is entitled to demand remuneration.