What Is a Precarious Commodatum?
Commodatum is a gratuitous loan of a non-fungible asset whereby the borrower receives the property for use and must subsequently return it. However, it is deemed precarious when:
- No specific term for restitution has been established.
- No defined use of the lent property has been agreed upon.
- Possession is based solely on the owner’s tolerance, without clear contractual support.
Under these circumstances, the owner retains the legal authority to request restitution of the asset at any time, without waiting for a previously agreed deadline.
Constitutional Basis and Protection of Property Rights
The Constitution recognizes the right to private property and guarantees its protection provided it fulfills a social function. This right includes the power to use, enjoy, dispose of, and recover property from any person who possesses or holds it without sufficient legal title.
In cases of precarious commodatum, the absence of a defined term or purpose places the borrower in a position of mere tolerance. For instance, if an owner allows a friend to use a commercial space “for as long as needed,” without a written agreement or clear conditions, the owner may subsequently demand immediate restitution, as no binding term limits the exercise of ownership rights.
National legal doctrine has clarified that precariousness does not eliminate the gratuitous nature of commodatum but modifies its effects regarding the timing of restitution, thereby reinforcing the legal position of the lender.
Legal Effects of Precarious Commodatum
Right to Request Immediate Restitution
When commodatum is precarious, the lender may demand restitution of the property at any time without the need to justify additional cause. This distinguishes precarious commodatum from agreements with a defined term, where restitution is enforceable only upon expiration or breach.
Possession Based Solely on Tolerance
Precariousness also arises when occupation of the property does not derive from a formal contract but from the owner’s simple tolerance. This frequently occurs in family or friendship relationships, where property is used informally and without written documentation.
In such situations, continued occupation depends exclusively on the owner’s will. Once that will ceases, restitution may be demanded immediately.
Legal Remedies for Restitution
If the occupant refuses to return the property, the owner may initiate the appropriate judicial action to obtain restitution. This claim is grounded in property rights and the absence of a legal title justifying prolonged possession.
National jurisprudence has consistently affirmed that precarious possession is established when there is no fixed term or legitimate legal cause supporting continued occupation, prioritizing effective protection of ownership rights.
In conclusion, precarious commodatum is characterized by the absence of a defined term or purpose, or by possession grounded solely on the owner’s tolerance. This situation authorizes the owner to demand restitution at any time in protection of constitutional property rights and the freedom to dispose of assets.
Our firm provides specialized legal services in civil law matters related to commodatum and restitution of property. If you are facing a similar situation, you may contact us for tailored legal guidance.
Frequently Asked Questions (FAQs)
Is a written commodatum agreement mandatory?
It is not mandatory; however, it is strongly recommended in order to establish clear terms, use, and conditions to prevent future disputes.
What happens if no term was established for returning the property?
The relationship is considered precarious, and the owner may request restitution at any time.
Does the owner’s tolerance create permanent rights for the occupant?
No. Mere tolerance does not generate a definitive right of use or possession.
Can the occupant refuse to return the property?
They may attempt to do so, but the owner has the legal authority to pursue judicial restitution.
Does precarious commodatum apply only to real estate?
No. It may also apply to movable property, provided it was lent gratuitously without a defined term or purpose.
The content of this article does not reflect the technical opinion of Rigoberto Paredes & Associates and should not be considered a substitute for legal advice. The information presented herein corresponds to the date of publication and may be outdated at the time of reading. Rigoberto Paredes & Associates assumes no responsibility for keeping the information in this article up to date, as legal regulations may change over time.
