The Badajoz Provincial Court applies for the first time the ‘Rebus Sic Stantibus’ clause in a lease.With it the income is reduced in the period where non -essential shops were mandatory.In this case, a clothing store.

BARRASA INVERSIONES SL, dedicated to the textile sector, is a tenant of a place in Don Benito (Badajoz) owned by MONTOSASA CONFECCIONES, SL.The first company, which develops in the aforementioned the activity of sale to the audience of clothing, through the Mango brand franchise, demanded amounts and yield, on the one hand, on the one hand, the subsistence of the lease by tacit reconduction and, on the other, that the rent will be modified by reason of the 'Abus Sic Stantibus' clause.

Badajoz's commercial court number 1 dismissed its law.

The AP declares that with respect to the lease in litigation and by application of the 'search' clause during the 79 days that were from March 14 to May 21, 2020 the rent to be paid by Bars Investments, SL in favor of clothingAmount SL was reduced by half.

The coasts are not imposed in both instances.

The sentence is dated December 30 and has been known today.It is signed by magistrates Luis Romualdo Hernández Díaz-Sambrona (President and Speaker), Fernando Paumard Collado and Juan Manuel Cabrera López.

The forced closure of the activity does justify, in this case and at least in part, the application of this clause

The Court understands that the forced closure operated between March 14 and May 21, 2020 constitutes an episode that is part of the ‘Abus’ clause..It emphasizes that it was "a completely extraordinary event" and that the lessee entity "was suddenly prevented from exercising its commercial activity in the premises, as a franchisee of the mango brand"."He saw his economic activity paralyzed,".

The magistrates state that "nobody discusses that they could not sell anything, because their trade was face -to -face".They affirm that in that period there was a clear case of imbalance of the benefits and that the premises ceased to be useful for investments bars, SL, then, by legal provision, could not open it to the public and did not invoice anything."That closure, when the parties signed their contract in 2005, was not already unpredictable, but unimaginable," they underline.

The audience also points out that of course, none of the contracting parties were to blame for anything, and that Bars Inversiones negotiated with amounts to find a solution, formulating up to two different proposals.

«It is evident that the closure became excessively onerous for Bars Investments, but the fulfillment of the contractual obligation as agreed with MONTOSASE CONFECTIONS, SL.During those days there was an exorbitant disproportion between the obligations of the contracting parties.In that period, the balance of benefits was of course broken.The commutability of the contract disappeared and the economic purpose of the contract was frustrated, ”says the court.

As for the default in which the lessee entity was at the time of the closure, he affirms that it should not be an impediment to apply the ‘search’ clause.In this sense, he argues that it is true that in comparative law, in general, the possibility of altering the terms of the contract is forbidden who is in default, but that nevertheless, in our order, it is dispensed with such a requirement, andExplain cannot identify the discovered with bad faith.

The hearing states that the clause in litigation relies on good faith (article 1258 of the Civil Code), that debtors can be in bad or good faith, and concludes that here Bars Investments "apparently has done in good faith".«Not only for legal presumption, but also for their own actions.She carried out negotiations to avoid her contest and, when the deals were unsuccessful, she requested a voluntary contest.Likewise, the fact of being in such a situation, cannot make it worse, ”explains the court.

As for the effects of the application of the clause, the Badajoz AP understands equitable that the risk represented by the closure of the activities between both contractors in equal parts is distributed, so that the rent is reduced in half during the days during the days during the daysin which the premises was closed by legal imperative.

Instead, he considers that once the closure was already lifted and investments opened his store, the lease contract must return to his being.In this regard, he affirms that possible oscillations in sales, although they have been affected by the pandemic in one way or another, are not exceptional alterations.

He points out that there is talk of a 43% sales fall in the first ten months of the year 2020, but the court concludes that this percentage is largely a consequence of the closure already mentioned.«The recurring society was the burden of proveing fully that, after the opening of the shops, an economic situation continued to subsist that altered the benefits of the contract in an extraordinary and serious way.The single reduction in sales in a specific period, even with a accused character, cannot justify the application of the search clause.Such a situation cannot be labeled unpredictable, ”he says.

Finally, remember that as the doctrine of the Supreme Court collects, “one thing is that the economic crises of deep and prolonged effects suppose an important variation of the circumstances and can alter the bases of the business and a different thing is that the clause operatesAbus »."Indeed, its application does not occur in a generalized way, or automatically," the court adds.

It emphasizes that in addition to the crisis, it is necessary that an excessive onerosity and that a relevant or significant incidence regarding the economic base that initially reported the contract concluded is required.

«Hence a circumstantial sales collapse can no longer justify the application of the clause.Unlike the closure that is an objective and impeding circumstance of the activity, sales have a clearly random component, which enters fully into the normal risks of the contract, ”reasons the audience, and adds that it cannot affirm that theeconomic purpose of the contract.

Against this resolution, extraordinary appeal for cassation for procedural and cassation infraction.

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