LEASE
.
HISTORY
The voice comes from lease to lease, which means "give or get money through the temporary use of things property, or profit or income. "
Originally, the lease could be things, works or services. The idea of \u200b\u200bservices has its origins in the Roman idea of \u200b\u200bthe locatio conductio, and so, although as noted Diez-Picazo, who promises to pay the price called "driver" in the works called leasing terminology invests and pays the price is called "locator." Some authors, such as Arias Ramos, LOCARE analyze the idea, and others note that the terminology was born "probably in assumptions relating to works of the State and from there went to private law."
The influence of English law and Germanic law laid its bases to complement the Roman law, the degree of non-admitted today the perpetual lease, because from the French Revolution, this situation
what is considered to be acquired with the purchase lease use. In European legislation, and in some parle of our national history, the lease was the transfer of use or enjoyment of something by paying a fee, whether tangible or intangible property, real property, work services provided by a person, Intellectuals, mechanical, and efforts to carry out a work. Legislation Mexican force allow subject matter of the lease, both movable and immovable property, tangible and intangible assets such as (so called by some American writers), with the exception of consumable goods (those that are destroyed by first use) and strictly personal rights (a. 2400, CC). We thus, that the services provided by a person, whether intellectual or mechanical, and efforts to carry out a work are subject to different contract, but no pact rentable.
Influenced by the Napoleonic Code, the legislation of almost all Western countries was favorable to the landlord, but after the Swiss Civil Code of obligations, the legislation was amended to make it fair, even leaning in favor of the tenant.
European countries after World War II, passed legislation exceptional and temporary moratorium declared income and the extension of contracts, even condemned speculation illegal, and commissions were established arbitral special courts to judge the problems of rent. In Spain, for example. extension there were several laws that denied benefits to foreigners and set the maximum amount of rent increase, as well as the obligation of the owners of ads when you have empty buildings.
In Mexico, there was also an emergency legislation on the occasion of the Second World War limiting the lease and eventually lead to an injustice with respect to some property owners (the law was repealed on 30 December 1992), a situation that worsened with the reforms of 1985 which became mandatory deadlines with respect to dwellings, leading to a change in the rental agreement, which reached the level of having to change this situation in the capital Republic, with the reforms of July 21 and September 23, 1993.
is necessary to reiterate that the lease contracts involve two parties (landlord and tenant), as in all contracts, and that solutions should aim to harmonize the interests of both under Warranty enshrined in our Constitution social, while respecting the rights of those who have less.
the lease has been identified as the second-largest contract regulated by civil legislation, given the frequency of its use, after the contract of sale. Moreover, its importance, both economic and legal, has forced the specialization of judges, at least in the capital of Mexico, where judges have property leasing.
CONCEPT
modern civil law concept of leasing is very wide, therefore it is not possible to present it as a unit, because it includes objects as diverse as law same as they are contained, however, it is necessary to use a generic term as a reference, as saying that "the figure of the lease is understood as the fact that a person assigns to another the enjoyment of a thing to change a specified price and right time. "
Considered
lease as the contract, Escriche defined as "that by which one party agrees to give the other for some time and for a price the use or enjoyment of a thing or its job. "
"This contract, highlights of J. Antonio Lozano - is as necessary and universal as the purchase ... because everywhere the man who lacks certain things he is obliged to seek their pleasure when you can not or will not buy. "
The Colombian Civil Code, in a. 1973, states that "the lease is a contract in which the parties undertake reciprocal, one to grant the enjoyment of a thing, or perform work or provide a service, and the other to pay for this enjoyment, work or service , a fixed price. "
This assertion, Ortega Torres follows that the "lease is a bilateral, onerous, consensual, commutative (even if random in the partnership), and subsequent implementing administrative act no device. "
Article 1543 English Civil Code defines the lease, "is that by virtue of which one party agrees to give another the enjoyment or use of a thing for a specified time and price right."
With respect to the Civil Code, as a. 2398 requires the lease as follows: "There lease when the two Contracting Parties undertake reciprocally to grant a temporary use or enjoyment of a thing, and the other to pay for that use or enjoyment of a certain sum" . The contract includes regulation of the articles. 2398 to 2496 of the substantive order.
DF Civil Code refers to the time limit with the phrase "use or enjoyment of a thing", it should be interpreted in the sense of temporality, not in the literal predetermination duration, since the article itself provides for the assumption that the parties have agreed that time dictating rules for this purpose.
Thus, the pact is agreed that the duration of the lease for an indefinite period, is incompatible with the legal nature of these acts involve dismemberment of real property, equivalent to the lease, for opposing the terms of temporality is drafted a. 2398 Civil Code.
In that vein, the Civil Code sets a maximum duration of lettings agreements when they fall on real estate also distinguishes different deadlines depending on whether the property is intended for habitation, commerce or industry. But the legislature did not provide for the assumption regarding the maximum period that can be attached to a lease on furniture, Therefore, contracting parties have complete freedom to fix the term of the lease, but always bearing in mind the requirement that there be a deadline.
It also highlights the definition of lease, the landlord is obliged to grant temporary use or enjoyment of the property at the same time. Thus, if the contract to be awarded the use of the property, the tenant can dispose of it as agreed, or, according to the nature or purpose, a. 2425, fr. III, CC, if agreed also on the enjoyment, the tenant can make their own fruit or normal products of good, but not all or part thereof, otherwise it would not be a rentable covenant, but a different legal instrument transferring ownership.
stated in the doctrine of the lease as a specific note the proportionality of the price with the duration of the contract, adding that the price is calculated per unit of time, either hourly, daily , month, quarter, semester, year, etc. The proportionality of the price is regulated in Articles 2426 and 2429 of the Civil Code.
CONTRACTING PARTIES
part is called the lessor an obligation to grant the use or enjoyment of a movable or immovable, in exchange for a price true, is called part lessee to acquire the use or enjoyment of the property, by paying a certain price.
ESSENTIAL ELEMENTS
Consent: follow the general rules of contracts and are given with the agreement of wills of both parties (landlord and tenant), one for granting the use or the use and enjoyment of property, and the other to pay as compensation a certain price.
OBJECT
The thing that occurs to rent and the price that must be true, no payment is required in money as they can be things and rights which are in trade, not fungible, nor those who are out of business, as community property or personal rights. The price must be true, genuine and determined or determinable, which means that should consist of a sum of money or anything else equivalent, it is a simulation and there is always the possibility of determining how would be the payment of rent in proportion to the amount of sales for a commercial.
ELEMENTS OF VALIDITY
Capacity: to celebrate the lease requires only general ability, therefore, owners can make rent by themselves or through their managers, this means that there may be the property of others, so do the goods are insured and subject to a including the tenant, the landlord's consent, may enter into a lease.
There are limitations to the borrower, the sharecropper or the co-owners. Moreover, those who exercise parental authority have limited the contract, as well as guardian, executor and agents, under the powers conferred on them the powers.
While there is freedom to hire, civil law establishes limitations or prohibitions to receive rent, sanctioning the event with the annulment of the contract, as in the case of the tutors on the property of the ward, they can not take on lease for themselves or their families. Like the judges, magistrates and public officials or employees, are prohibited from taking in the rent, property in which they operate.
FORM
The lease is, as most of our contracts, a consensual act, therefore, simply that the contracting parties agree on the good and the price to be paid for the use and enjoyment of it, that there is a lease. At about the a. 2406, the Federal District Civil Code, establishes that: "The lease must be in writing. The absence of this formality is charged to the landlord." For his part, a. 2448-F states that: "For purposes of this chapter to contract lease must be in writing, the absence of this formality is charged to the landlord ...". In the previous rules it follows that the existing lease is valid and if not held in written form, since no transcripts Articles reference is made to the absence or disability of the contract for lack of written form. In any case, the expression: ".. the absence of this formality is charged to the landlord ...", implies that, where appropriate, on he bears the burden of proving the terms of the contract. However, the a. 958, DF CPC provides that: "For the exercise of any of the actions envisaged in this title, the plaintiff must present your demand for the lease, in the case has been concluded in writing ", but neither this provision nor of the above it follows that the lease in writing that is missing or invalid.
CLASSIFICATION
is a contract, because it does not depend on any one for his birth or existence and because it has its own purpose and function of economic and legal ;
· BILATERAL because both parties are obliged to reciprocate;
· PAYMENT , under the obligations both parties must translate into profits and taxes reciprocal;
· SWITCHING , for in this contract are known from the time of its conclusion the rights and obligations of the parties;
· is a contract IN-TUITU PERSONAE in the sense that the tenant can not sublet or assign the lease if it is to the landlord's consent;
· is also a contract FORMAL rule, as it must be in writing in the case of movable property is valuable and always in the case of property;
· TEMPORARY , it is celebrated for a limited period, which is fixed in relation with time or with the use or enjoyment of the thing leased;
· successive chain, because the performance of landlord and tenant are not met in a single act, but a regular basis, has the quintessential nature;
· NOMINATED and translational use or enjoyment.
SPECIES OF CONTRACTS
Our legislation, the lease may be: administrative, civil, commercial and financial. Administrative lease occupies a. 2411, the Federal District Civil Code, which stipulates: "The hiring of national, municipal or public facilities shall be subject to depositions of administrative law, and what is not ready, to the provisions of this title." Ie the lease is administrative, regardless of the nature of the subject, when the goods covered by the contract, belong to the Federation , state and municipalities and are subject to the provisions of administrative law and, failing that, the provisions of Federal District Civil Code, is civil, when it is not commercial or administrative, that is, when it falls on real estate, or when compared to property held without the purpose of commercial speculation, or falls on property not belonging to Federation, states and municipalities, is commercial, the one who falls on property speculation in order to Commercial (a. 75, fr. I, Commercial Code.), and is governed by the provisions of the Commercial Code., not when real estate lies, which always, under our law, is a civil lease even when held for the purpose of commercial speculation, finance lease, the species referred to in a. 25, General Law of Organizations and Auxiliary Credit Activities, which states: "By virtue of the leasing contract, the financial lessor agrees to acquire certain assets and to grant or temporary use, time forced a person or entity, forcing it to pay as consideration to be settled in installments, as agreed, an amount in cash determined or determinable, covering the va-'lor procurement of goods, financial charges and other accessories, and adopt the expiration of one of the options contract terminals referred to in Article 27 of this Act ...".
OBLIGATIONS OF THE PARTIES.
LANDLORD:
· transmit the use or enjoyment of the thing, deliver the thing leased to time, place and manner agreed;
· keep the thing leased in the state for that it is intended the thing leased, and in case of default, the tenant may seek rescission of the contract or request the judicial authority to shake the landlord to comply with its obligation;
· not obstruct or embarrass the use, or change the shape of well, except in cases of urgent and essential repairs;
· ensure peaceful use and enjoyment by the duration of the contract;
· guarantee possession useful, and it is responsible for latent defects that prevent or decrease the use of the leased property;
· respond eviction, can claim by the tenant the loss of income, pay for improvements made by the tenant if the tenant authorized to make;
· return any balance in favor of the lessee at the end 'of the contract;
· prefer the tenant in case of a new lease, if payment is current income.
Del TENANT:
· pagar la renta en forma y tiempo convenidos;
· conservar la cosa en el estado en que la reciba, respondiendo de los daños y perjuicios que sufra el bien por culpa o negligencia, poniendo en conocimiento del arrendado la necesidad de reparaciones urgentes;
· hacer las reparaciones de poca importancia, no variar la forma de la cosa arrendada;
· inform the landlord of any misuse or harmful development;
· use the thing to use agreed or according to their nature ;
· answer the burning of the leased property with the restrictions imposed by the DF Civil Code;
· return any balance in favor of the landlord and restore the leased at the end of the contract.
TERMINATION.
depends on whether the contract has been concluded for a fixed or indeterminate. In the first case will be completed by either party upon notice to the other as indubitable and, in the case of property, if the property is urban or rustic. The a. 2483 CC lists the main causes Termination:
1) for having met the deadline in the contract or by law, or be satisfied in order for the thing was leased;
2) by express agreement;
3) for revocation;
4) termination;
5) by confusion
6) for loss or destruction of the leased property by case accident or force majeure;
7) expropriation of leased property made by the public interest, and
8) for eviction of the thing leased.
ends, too, by the death of the lessor or lessee, when expressly been agreed upon termination, as seen from a. CC 2408 interpreted a contrario. Also, at the end of the usufruct, the usufructuary if he leased the property subject to his right. Similarly, when without the consent of the lessor, the lessee doeth the works on the farm to discover a treasure. Another cause for termination is the opposition to sublet if that right has been agreed, and in the case of judicial sale when the contract was concluded within 60 days prior to the abduction of the farm.
