Comments to Judgment 787/2020, of November 4, of the 13th Section of the Provincial Court of Barcelona.
This judgment, which establishes very important criteria for the interpretation of lease contracts, arises from a proceeding in which the plaintiff claims from the defendant the payment of a certain sum of money, due to the damages existing in the leased property at the time of its return.
To this end, the plaintiff directs her action not only against the two tenants of the property, but also against the joint and several guarantor of both.
In resolving the conflict, the Provincial Court establishes several criteria of great importance, which can be summarized as follows:
First, the Court recalls the obligation of the lessee to return to the lessor the leased dwelling or premises at the end of the lease "as he received it, except for what has perished or has been impaired by time or by unavoidable cause".
A double presumption iuris tantum (i.e. presumptions that can be rebutted by proof to the contrary) is also established: on the one hand, the tenant is presumed to have received the dwelling or premises in good condition at the commencement of the lease; and, on the other hand, the tenant is presumed to be at fault in the event of deterioration. The burden of proof to the contrary to rebut both presumptions shall be on the lessee.
An important fact in this point resides in the definition "to receive in good condition", not meaning to receive the dwelling "new", but in the same conditions in which it was received, admitting certain deteriorations due to habitability in time or by unavoidable cause, by virtue of articles 1,562, 1,563 and 1,564 of the Civil Code.
Everything that the Provincial Court clarifies in this judgment is understood, however, without prejudice to what has been agreed between the parties, who may establish by mutual agreement what they deem convenient in the clauses of the contract.
The Provincial Court also recalls the criterion followed by the Supreme Court when establishing compensation in the event of impairment:
"It is reasonable to take into consideration the circumstances of the damaged property in order to reduce the compensation, for reasons of equity and to avoid unjust enrichment, considering as such the dilapidated condition of the property (...) or other similar aspects that detract from it".
This criterion is intended to limit the cost of the indemnity, since factors such as the age and condition of the leased property or premises must be taken into account for the purpose of limiting such indemnity.
Finally, and in what we consider the most innovative and important criterion (and, perhaps, the most technical-legal) held by the Provincial Court of Barcelona lies in the perspective it holds on the joint and several surety in favor of a non-lessee third party, and its possible lack of passive standing (i.e., the impossibility of being sued in the process).
Thus, in order to verify whether the liability of the joint and several guarantor can be extended to the object of the proceeding (i.e. the indemnity for damage caused by the tenant's fault), and therefore be considered a co-defendant, the judgment states that it is commonly accepted doctrine that the bond is not presumed, in accordance with article 1,827 of the Civil Code, but must be express and cannot be extended to more than what is contained therein.
Thus, in order to verify the scope of said bond, the Court establishes the obligation to refer to what was agreed between the parties (by virtue of articles 1,091 and 1,255 of the Civil Code), both with regard to the duration of the contract and to the bond clause, it being settled doctrine that "in order to ascertain the intention of the parties, the entire contract must be taken into account, and not a clause isolated from the others".
Likewise, according to commonly accepted doctrine, it is provided that the surety clause must be interpreted in a restrictive manner, to the benefit of the debtor, as a principle and general rule in the interpretation of contracts.
It should be noted that, in the lease contract that is the object of the proceedings, one of the co-defendants was instituted as joint and several guarantor in the following terms: "it is constituted (...) as a personal and joint and several guarantor and guarantees for all purposes the tenants in the lease contract (...) taking charge of any non-payment that may occur".
In the opinion of the Provincial Court, the aforementioned clause does not expressly extend to the fulfillment of all obligations, but only to monetary obligations, and extending this liability to a non-monetary obligation (such as, certainly, the obligation to conserve and return the leased property or premises in the same condition in which it was received), would violate the principle of restrictive interpretation of the bond in favor of the debtor, as explained above.
Therefore, the Provincial Court considers that liability cannot be extended to the joint and several guarantor in this case.
From BUSQUETS, in the lease contracts that we draft, we always recommend to expressly detail the obligations of the parties (lessor, lessee and possible joint and several guarantors), in order to avoid what in the present case happens: that, for not correctly foreseeing the extension of the responsibilities of the other party, the lessor can be harmed before a possible non-payment by the debtors, not being able to claim the fulfillment of non-monetary obligations to the joint and several guarantor, whose responsibility would have been extended if the clause of the contract had been drafted correctly.