notes taken in Volume II of the book
COMMERCIAL CONTRACTS
JAIME ALBERTO Arrubla Paucar
12 th
EDITION
TYPICAL CONTRACTS
DIKE LIBRARY LEGAL
LEASE OF COMMERCIAL PREMISES
not find in the Commercial Code regulation of the lease, did not address the legislature to regulate such commercial contract in the relevant book, perhaps because he considered sufficient general structure of the contract referred to in the Civil Code, which applies to commercial leases under the direct reference to Article 822 makes commercial status.
However, referring to commercial property, namely the establishment of trade, which defines "a set of goods organized by the employer for the purposes of the enterprise" (Article 515 of the Code Commerce), said that within the totality of assets that compose it, the contract contained lease.
The shop that serves as a physical support to the establishment of trade, that is, where is your seat and commercial enterprise development can not be owned by the employer, who may have taken a lease title .
This right of mere possession that has the commercial entrepreneur, is an integral part of its establishment and is the subject of legal regulation and the subsequent protection provided by the legislature.
If the owner of the building where the business establishment could at any time cause to evict the tenant for termination of contract and does not extend, could take advantage of good name, fame and the customers gained by the employer and install your own identical or similar establishment that worked there. It is clear that the employer attesting to a commercial establishment attracts a clientele, which is guided by the site occupied by the establishment, and has already proved, can influence an entire industry and even that intangible valuing it can become a moment in most important element of any commercial establishment. For all this, we can not allow the local owner of abuse, benefit and work effort the employer.
LEGAL STATUS OF THE COMMERCIAL PROPERTY
The term 'commercial property' was not capricious and such expression has been imposed on the world despite not be covered by the legislation. Undoubtedly, the claims of traders to invoke a similar right of ownership, with all the consequences of its own.
However, in our legislation, as in many others, failing to address fully the wishes of traders and then we can say that is not completely correct the term "commercial property" , as the right of the tenant can not qualify as a real right, but simply as a personal right against owner, but with its own characteristics and conditions that make it different from the traditional category we know as a personal right.
owner allowing the lease for the installation of an industrial or commercial exploitation of your property, you are giving this property some involvement in favor of a third and consequently will not be able to recover according to their simple desire and capricious reasons.
Those rights granted to the lessee, are not real right, it's not going to be able to claim it, nor will they hold a right of pursuit, may require the owner just compensation abuse.
But is not a mere personal right, because in some ways the property is affected to a right of renewal of the lease and also affected the respective payment of compensation.
Nothing prevents us to refer to another class of rights than real and personal. French doctrine has identified a tripartite classification of rights, indicating that there are real rights, personal and intellectual. The latter category could include the ownership of intangible property, such as the so-called commercial property.
REGULATION IN OUR RIGHT
In this vein, it brings our legislation a system of rights protection the tenant, in harmony with the rights of the landlord, we can examine the various issues.
CONTRACT RENEWAL
a) The renewal of the contract. It is the primary right granted to the tenant and proceeding when the following conditions:
la) That the lessee employer has taken at least two consecutive years by way of lease property.
2a) That the occupation was with the same business establishment, (Article 518 of the Commercial Code).
is estimated that within two years is sufficient for the tenant to establish your business, become known to the public and duly accredited establishment, getting a clientele around him. In turn, it is a time for the landlord, who may at that time to examine the conditions of the tenant and contracting, compliance in the payment of income and property maintenance.
b) is not an extension but of renewal. It should be clarified it is not an extension, but a right of renewal. Not continue the old contract on their own terms, for the renewal effective change occurs in the economic circumstances of term assurance and even the destination of the property leased, who came to characterize the regulation tenant.
c) Procedure for renewal. It is observed that when the period stipulated for the duration of the contract is to vary the circumstances prevailing in it, it is normal that these parties agree to these new circumstances, being for it must be one of them, usually the landlord, to promote discussion to the effect making a bid for renewal before the expiration of the contract, failing which it is renewed under the same terms.
But if this is not possible to agree not contractors, commercial law provides for the oral proceedings to the judge, with the participation of experts, decide on the circumstances that must prevail in the contract to be renewed.
d) Effect of ruling. It is very important to establish at what point should affect the judge's decision on the new circumstances of the contract. Indeed it is noted that no single approach applies in relation to judicial decisions, for some effects occur only after the execution of the sentence, for others from the same date of application and others from the same time renewal should occur.
The most widespread approach in practice is that the date of the new contract must be one in which the ruling is rendered terminating the differences between contractors and decide the terms that must prevail in the new contract. To support this approach argue that can only be enforced once the bugs have gained strength, moreover, that decisions of this nature are constitutive because they give birth to the new contract.
not share the above criteria, it is clear that the contract already exists , just differ as to some terms. If the contract is legal life, judicial intervention is presented to determine some clauses, some of the new contract terms with which they disagree parties. Therefore, the term of the contract is renewed, is precisely the date was scheduled como terminación del mismo; es el momento en el cual surgen las diferencias que requieren la intervención del juez y el auxilio de peritos conforme al artículo 519 del Código de Comercio.
Por tanto, las determinaciones que tome el juez sobre las condiciones del contrato en que no estuvieron de acuerdo las partes, han de tener vigencia desde la misma fecha en que el contrato se renovó, en que surgieron tales diferencias y no en la fecha en que ejecutorió la providencia que las dictó.
No es extraño en nuestro sistema contractual que pueda tener vigencia el contrato estando todavía pendiente the determination of some of its essential elements. For example, in the sale, Article 1865 of the CC allows the pricing allow a third party. In the lease stated in article 1976 of the Civil Code, the price can be determined in the same ways that the contract of sale, more specifically, Article 2001 of the Civil Code states that having dispute over the price or rent and not having test, will be the fair value of experts.
These events of the purchase and leasing, the effect of this is precisely the moment that the parties agreed to and not from the date on which the third or experts determine the price. The same occurs in the lease is renewed, and therefore the effects of judicial decision should go back to the time at which operated renewal.
The second approach we have outlined seems to be the most appropriate legal system, but its implementation is necessary to consider its implications against various figures necessarily touch with the lease, including: default and waiver requirements, the nature of the sentence in the verbal process and for costs that may occur in these processes.
style is clause in lease waiver of the requirements to constitute the tenant in arrears to pay the monthly rent for lease. On the other hand, failure to verbal process which decides on the new rental fees retroactive, and if we consider that the duration of a verbal process with two instances, perfectly passing of six months, it appears clear that lump sum as a result of retroactive adjustments.
In the event that the tenant paying rent to come regularly and dutifully until the time of failure in verbal processing. Then we wonder when you should pay this amount retroactive to avoid incurring late payment of monthly rent? Is it necessary requirement for notice of default? Or with the usual disclaimer that be enough? Will automatically in arrears? All these questions must have a logical and consistent with our legal system, which requires an interpretative approach, it is evident the absence of regulations on the subject.
waiver of the requirements to be established in arrears is agreed in the contract, apart from the review on its validity would be made, given the repeal of Article 2035 that made the Act 820 of 2003, concerns the normal and regular requirement to pay the monthly rent for the lease, rather than requiring extraordinary, eventually, have to pay global adjustment to an income or a possible compensation . We conclude at this point that the waiver of the requirements to be deemed in default does not cover the eventual sum is reached as set in the future contractual adjustment will be necessary to require the debtor pursuant to the general rules (Article 1608 CC) Arrears to put everything, because the sentence that occurs in verbal process is not a conviction.
The sentence not lend itself to be enforceable, but it is necessary on the basis of it, in the invitation to be in default and the contract, demanding compliance. Also, because it is a judicial decision, with a more well arbitration should not proceed to pay the costs of any of the parties to the contract and both should bear the costs equally, as provided in Article 2001 of Civil Code.
legal argument the previous invocation of convenience for the administration of justice. The fact that legally define the differences occurring at the time of contract renewal with effect in the future, after the execution of providence, has brought the subject of these legal relationships to seek judicial disputes and not to avoid, for the duration that usually have verbal processes, it is very convenient for tenants to go to litigation. If it succeeds in imposing our opinion undoubtedly have an impact for citizens to seek to reach an agreement on their differences without having to clog the judicial offices.
e) is not tacit. It is also different renewal to figure that embodies tacit the Civil Code Article 2014, which, if the parties declare by any means their desire to preserve the lease, it is renewed under the same conditions and not more than three months. In the renovation we have been trying we can see that the circumstances are not the same, and there is no limitation of three months duration of the contract.
When the lease term is defined and is defeated, it is necessary to apply the figure of the automatic renewal in some cases, to determine the time of the eviction to be made, or which should discuss the terms thereof, to provoke a renewal under different conditions. The figure in these events is complementary, but in no way be confused with the renewal.
RECOVERY LOCAL LAW
Notes a causal law as a limitation, which contain the events where there is no room for renewal and therefore the landlord may recover the property owner without the obligation to compensate the tenant. Article 518 of the Commercial Code states that the employer has no right to renewal the contract in the following cases:
a) When the tenant has breached the contract.
b) When the owner needs the property for your own room or to his establishment for a business substantially different from that considers the tenant.
c) When the property is to be rebuilt or repaired with necessary work that can not run without the delivery or unemployment, or ~ demolished by its state of ruin or build a new building.
CAUSAL FIRST REFERRED TO BREACH OF CONTRACT BY THE TENANT
arises when the tenant violates the convention, for example when not timely pay the rent, when you change destination harming the rights of the landlord, or local does not give the proper conservation.
SPECIALTIES AS TO THE ASSIGNMENT AND SUBLETTING
is customary in the leasing contracts, agree the prohibition on the tenant to assign or sublet the property, which would suggest that to do so, the tenant would violate the lease and therefore lose the right to renewal.
However, the Commercial Code Article 523 provides in some specialties in these matters, which in turn constrain the orbit of the free will of the parties to create legal consequences for the assignment and the sublease.
With the legal regulation on this point, you're protecting the commercial companies and is besides being consistent with the fact of having seen the commercial law of the lease as one of the elements of the commercial establishment.
If the tenant sells the business establishment, the sale necessarily entails the right to hire, which involves a transfer of that which is binding on the landlord by express legal provision and do not mean in any way violation of the contract and is specifically prohibited the transfer. If the assignment of the lease is not a direct result of the sale of the business establishment, is not valid without the express or tacit landlord.
This event is appropriate to notice the error that occurs every day, when the sale proceeds to the establishment ignoring this particular legal business is solemn, as stipulated in Article 526 of Commercial Code and if not satisfied with this ritual, the sale is non-existent and therefore the assignment is unenforceable to the landlord.
respect to sublet the premises, the tenant can not do it in full without the consent or acquiescence of the lessor, although it could validly sublet to half of the property, for which sufficient if not affect the rights of the lessor. This same limitation can the tenant to vary the destination specified in the contract for the inmueble332.
provisions on these topics are not derogable in and this is done, the stipulations of the parties will not produce any effect. This is required by Article 524 of the Commercial Code and the penalty is the inefficiency that includes Art 897 of the same work.
On the other hand, these factors place without the need to occupy two years have elapsed the same establishment of co ~ merci, as in the event of renewal.
RESPECT OF THE SECOND CAUSAL
The law did not define what is meant by a company substantially different from that considers the tenant. Obviously, the interpretation should not be restrictive and should be understood, in addition to the specific company that operates the tenant, other related businesses that would benefit from the reputation and goodwill acquired by the employer.
REGARDING THE THIRD CAUSAL
is important to note, as does the rule that if the building should be rebuilt or repaired with necessary works that involve the delivery or vacate, no will lead to renewal.
THE EVICTION
In the event of the grounds 2 and 3 of Article 518 that we have been discussing, it is necessary that the landlord evict the tenant, no less than six months before the termination date the contract. If the eviction is not done in the manner described above, the contract will be renewed under the same conditions and for the same period of the original contract.
might wonder what happens in those contracts whose duration is indefinite, as with those who celebrate verbally.
In this event the eviction may be checked at any time.
EVICTION FORM
Eviction is not solemn, can be verified by private charter or even verbally or do so through legal process. The important thing is to prove their eviction when necessary accomplishment, therefore it is advisable judicial proceeding or the written document duly certified.
Regarding this point, it is worrying the situation presented by the National Postal Administration as the agency responsible for certification of the mail. For several years does not certify the content, but on the referral. Before a sealed copy of the letter or note which referred, it now simply get a receipt which states that it submitted "papers" to address indicated. This has led to H. Superior Tribunal of Medellin, in a recent case in summary proceedings instituted by launching Juan Guillermo Fernandez, to ignore the feasibility of a certificate of proof in these terms and rightly so, because not certify the content, there is no certainty about it.
PROPERTY UNEMPLOYMENT
Met eviction in legal terms, the contract is not renewed and therefore the tenant must vacate. If the tenant does not agree to relocation will be necessary the owner demands the release for the processing of abbreviated process which must certify the completion of the eviction, Allegan proof of the contract and the domain, it is a right which the law confers on the owner. Need not prove the causal related facility to prevent any recurrence, just your statement, because of not meeting the allegations to avoid renewal, the owner landlord is obliged to indemnify the employer.
We think to ask about the term that has the owner to claim unemployment, occurred after non-renewal. Some local courts jurisprudence have wanted noted the absence of legal regulation, to be preceded within three months, failing to understand that the owner has abandoned his original intention, and therefore, the lessee can continue to enjoy tenure, on average equal to originally indicated in the contract.
We see no legal argument to support the validity of this or other similar term. Should analyze the particular circumstances in each case, to release an acquiescence by the owner for the continuation of the lease, which in any case must prove the tenant.
OBLIGATIONS OF LANDLORD REFUSES TO RENEW THE CONTRACT
owner within three months from the date of delivery, should be given to property or to the destination indicated principle to the reconstruction, repair or demolition, as the reason invoked for non-renewal, under pain of being liable to compensate the tenant as prescribed by Article 522 of the Commercial Code.
also has an obligation to prefer the tenant of any other person lease of the premises repaired, rebuilt or new construction. To do so the tenant does not have to pay a special premium and the new charge is determined by mutual agreement, that failure to occur, it is set by the intervention of experts, in the manner that signals the Commercial Code Articles 2026 et seq.
The owner, for purposes of implementing the foregoing, it shall inform sixty days prior to the date on which can deliver local. Received by entrepreneur and former tenant this notice, shall in turn notify the owner within thirty days in advance a la fecha en que estarían listos los locales, si hace uso de su derecho de preferencia. Si el propietario no prefiere a su anterior arrendatario, hará a este último acreedor de la indemnización respectiva.
Si los locales construidos o nuevos son inferiores en número a los que antes existían, los arrendatarios más antiguos que ejerciten el derecho de preferencia excluyen a los demás.
INDEMNIZACIONES A QUE PUEDE TENER DERECHO EL ARRENDATARIO
Señalamos anteriormente that if the landlord fails to prevent the alleged renewal of the lease, tenant comes to the employer the right to demand compensation for damages first to estimate experts. The same is true in the case of not occupying their own room or property that does not put there own business and substantially different from what had been exploiting the employer, or prefer not to its former tenant in new or refurbished premises.
The contents of that compensation as enshrined in Article 522 of the Commercial Code, which also include loss of profit incurred by the employer, the necessary expenses for the new facility, the compensation paid to workers by the end of contréito to mark the closing of the company and the value of improvements made necessary or appropriate in the premises.
As I said earlier, the respective property shall be especially concerned to pay such compensation and the demand will be registered in the respective sheet of that property.
CONTRACTUAL NATURE OF THE OBLIGATION TO REPAIR BY OWNER
For purposes of preventing the renewal of the contract, Article 520 says that the landlord evict the tenant, then Article 522, referring to compensation, again warned that the owner must compensate the tenant fails to comply with what is stated in the eviction that is, the destination does not noticed the building or does not start the works within a period of three months of unemployment.
These expressions of the law relating to landlord and the landlord does not have a reason and it is precisely with these rules is to balance the rights of the owner of the leased property with the owner of the trading company established in that property. It is then a real need of having to match, at least for the time of eviction and to request the refund in the event that is submitted voluntarily, the qualities of landlord and owner.
, so we understand that if the owner decides landlord prevent renewal of the agreement and satisfies the burden to notify the tenant in the terms of Article 520 of C. Co., giving the reasons in accordance with the possibilities allowed by Article 518 of the Code, if it starts to works in the term set aside or to give warning to the property and must compensate the tenant and that duty arises from the contract itself, to the extent that the termination of the contract was improperly exercised where I worship is the obligation to make reparation.
MANDATORY PROVISIONS OF
regulation on this matter brings the Commercial Code Articles 518 to 523, can not be revoked by the will contract warned as to address the problem of assignment and subletting. Can not be waived for renewal, or expand the grounds para la no renovación o restringirlas, como tampoco se podrá fijar un término menor o superior para ésta o renunciar o limitar las indemnizaciones a que pueda tener derecho el empresario. En esto se siguió de cerca la legislación francesa sobre la materia.
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