Abstract

Under Art. 709¹⁵ of the Civil Code, the lessor is entitled to terminate the leasing agreement due to the circumstances which are within the lessee’s control. As a further consequence, they are entitled to claim forthwith all the remaining payments that the lessee was obliged to make under the agreement. At the same time, the provision sets forth a mitigating mechanism, which requires to deduct from this overall sum “the benefits the financing party obtained as a result of their premature payment and of termination of the leasing agreement”. This construction was questioned by a court of second instance as to whether it provided grounds for an “autonomous” claim of the lessee to deduce the sum that exceeds the gains that would have been obtained if the agreement were performed within the initially prescribed time. With a view to the risk/profit profile in a leasing agreement the question may be answered in the affirmative. Beyond doubt, Art. 709¹⁵ grants the lessee the right to make a claim in the strict sense, allowing them to demand recovery of any sum that exceeds the benefits that the lessor has been entitled to under the agreement. In this sense, this regulation provides for a specific instance of unjustified enrichment, as it allows to balance the economic interests of the parties in the hypothetical situation when the agreement has been performed properly and the situation when it has been breached by the lessee.