Explanation of Article 383
The article clarified that for a loan contract to be concluded, the exchange of offer and acceptance is not sufficient; rather, it is also necessary for the borrower to take possession of the borrowed item. This is a tangible condition. The reason for this is that a loan contract is a gratuitous contract, and it does not impose an obligation on the lender unless possession is taken. This provides additional protection for the lender, as they are relinquishing the benefit of their money without compensation, and thus need to contemplate and deliberate on what they are giving up. The borrower takes possession of the item by physically receiving it, such as by handover, whether this is done by the borrower themselves, their deputy, an agent for receiving, or an intermediary. Possession can also occur without delivery or receipt, as the article does not require delivery and receipt for possession. For instance, if the item was in the borrower's possession as a deposit before the loan, and the loan was agreed upon with the item remaining in the borrower's possession as a loan, this suffices for possession to be realized. From the above, it is evident that according to this system, a loan contract is a real contract, not a consensual one. It is one of four contracts for which this system requires a tangible or formal condition: gift, loan, lending, and deposit without charge. It goes without saying that requiring a formal or tangible condition for the conclusion of the contract does not negate the necessity of fulfilling the essential elements and substantive conditions of the contract, as outlined in the general rules.
Related To
Article 383
A loan contract may not be deemed concluded unless the borrower receives the borrowed thing.