Explanation of Article 418
This article stipulates the application of the provisions for the delivery of the sold item to the delivery of the leased property, except in cases where there is an agreement between the lessor and the lessee that differs from the provisions established by the system for the delivery of the sold item; in such cases, the agreement of the contracting parties takes precedence.
Accordingly, the delivery of the leased property can be either actual or constructive; actual delivery of the leased property occurs by placing it at the disposal of the lessee so that they can possess and benefit from it without hindrance, even if they do not physically take possession of it, as long as the lessor has informed them of this. If the leased property is a house, its delivery is by giving the keys to the lessee or enabling them to possess it by any other means, after vacating the house and removing any belongings of the lessor or the previous lessee.
If the leased property is agricultural land, its delivery is by placing it at the disposal of the lessee, after vacating it from the previous lessee and any machinery or equipment that may be present.
If the leased property is a right of passage, its delivery is by delivering the deed of the right if it has a deed, or by authorizing the lessee to use this right and enabling them to do so by removing any obstacles to their passage.
From the above, it is clear that the method of delivery varies according to the nature of the leased property.
Constructive delivery of the leased property substitutes for actual delivery and is achieved by the mere agreement of the contracting parties that the leased property has been delivered from the lessor to the lessee. Constructive delivery differs from actual delivery in that it is a legal action or by virtue of the system, not a physical act.
There are several forms of constructive delivery of the leased property, including:
1- The leased property is in the possession of the lessee before the lease contract, such as if the leased property is in the hands of the lessee by loan or deposit, and then the parties agree on the lease, or if the leased property is in the possession of the lessee under a previous lease contract and then the contract is renewed. In this case, the lessee is actually in possession of the leased property at the time of the contract and does not need a new physical possession to achieve delivery. They only need an agreement with the lessor that the leased property remains in their possession, but not as a borrower, depositor, or previous lessee, but as a lessee under a new or renewed lease.
2- The leased property remains in the possession of the lessor after the lease contract, not as a lessor but as a sub-lessee, borrower, depositor, or otherwise. In this case, the parties agree to dispense with the lessee taking possession of the leased property under the lease contract and then re-delivering it to the lessor again under a sublease contract, deposit contract, loan, or otherwise.
3- The lessee lends the leased property or deposits it or engages in other actions that require taking possession of the leased property before taking possession of it; the third party receives the leased property directly from the lessor. This delivery to the borrower or depositor substitutes for delivery to the lessee; in this case, the leased property is physically transferred to the third party, and after they take actual possession concerning the contract they concluded with the lessee, and constructive possession concerning the lease contract, the first possession substitutes for the second possession.
Related To
Article 418
Delivery of the leased thing and its appurtenances shall be subject to the same provisions to which the delivery of sold items is subject, unless agreed otherwise.