Explanation of Article 419

Explanation of Article 419

The article addresses the second obligation of the lessor's commitments; Article (416) establishes the lessor's obligation to deliver the leased property and its accessories in a condition suitable for the intended benefit to be fully realized. The delivery involves enabling the lessee to benefit from the leased property without hindrance until the lease term expires. Consequently, the first paragraph of this article stipulates the lessor's obligation to carry out necessary repairs to keep the leased property suitable for use, including fixing any defects that affect the intended benefit. The lessor is required to perform necessary repairs that allow the lessee to obtain the intended benefit from the contract, such as repairing elevators, water networks, electrical installations, and other essential repairs for the intended benefit. However, non-essential repairs, such as painting the leased property or improving its facade, are not required of the lessor.

The lessor's obligation to carry out necessary repairs does not include routine maintenance that customarily falls on the lessee, even if it is necessary for the use of the leased property. To clarify this, it is essential to distinguish between three types of repairs: The first type: Necessary repairs for preserving the leased property, which are required to protect the property from imminent danger and usually require urgency. Failure to perform these repairs could lead to the destruction or damage of the property, such as fixing a leaning wall, strengthening a weak foundation, or stopping a water leak that threatens the building's safety. These repairs are the lessor's responsibility and are also a right for them; the lessee cannot prevent the lessor from performing them as will be explained in Article (434).

The second type: Necessary repairs for the use of the leased property, which are essential repairs needed for the lessee to fully benefit from the leased property but are not necessary to prevent its destruction or damage, such as repairing elevator malfunctions or water networks if there is no leak threatening the building. These are the lessor's responsibility, but they are not a right for the lessor; the lessee can prevent the lessor from performing them during the lease term as will be explained in Article (434).

The third type: Routine maintenance, which are tasks necessary for the use of the leased property but are minor and customarily borne by the lessee, such as fixing locks and keys or refilling air conditioner gas. These tasks are the lessee's responsibility, as will be explained in Article (433).

The system has expressed the tasks that obligate the lessor as necessary repairs to include the first and second types, while those that obligate the lessee are referred to as maintenance, meaning routine maintenance that the lessee is customarily responsible for.

The lessor's obligation to carry out necessary repairs for the use of the leased property according to this paragraph's text naturally includes necessary repairs for preserving the leased property; since they are necessary for preserving the property, they are even more necessary for its use.

The second paragraph states that if the lessor delays in performing necessary repairs, the lessee has the option to request specific performance, request performance with compensation by reducing the rent, or request termination. The lessee's right to request any of these options requires that the lessor has been notified, and the notification is as specified in Article (177). The options are detailed as follows:

The first option: Requesting specific performance by applying to the court for permission to repair the defect. If the court grants permission and the lessee performs the repair, they can recover the necessary repair expenses from the lessor, provided it is within the customary expenses; if it exceeds the customary amount, recovery is limited to the customary amount.

Despite the principle that the lessee does not perform necessary repairs unless the lessor fails to do so without court permission, an exception is made for urgent repairs that cannot be delayed or are minor by custom. The lessee may repair the defect without court permission and deduct the expenses from the rent, provided it is within the customary amount. If the lessee performs these repairs without court permission, they do so at their own risk; if they claim these expenses, the court verifies the conditions for performing those repairs without its permission, and the lessee must provide an account of what was repaired in all cases. What the paragraph contains is merely an application of the general rules outlined in Article (167).

If the necessary repairs are costly and disproportionate to the rent, the court may exempt the lessor from specific performance and limit the lessee's right to request a rent reduction or termination if it does not cause significant harm, applying paragraph (2) of Article (164).

The second option: Requesting a rent reduction because the decrease in benefit due to the lack of necessary repairs corresponds to a decrease in rent. When the lessee is awarded a rent reduction, it is reduced not only from the time of the claim but from the time the benefit decreased due to the lack of repairs, as rent corresponds to benefit; when there is a decrease in benefit, there is a corresponding decrease in rent to the extent of the decrease, which is performance with compensation. When the lessor performs the repairs, the rent returns to its original state.

The third option: Requesting contract termination; the general rules of judicial termination apply to this. The court may reject the termination request if the lessor's breach is minor in relation to the overall obligation and limit the lessee's right to compensation, applying Article (107).

In all the previous options, the lessee has the right, according to general rules, to request compensation for damages caused by the lessor's delay in performing those repairs. They may request a rent reduction equivalent to the decrease in benefit until the repairs are completed or termination, as well as compensation for personal or property damage caused by the lessor's delay in performing these repairs, whether the lessee chooses specific performance, rent reduction, or termination. The lessee's entitlement to compensation requires notification, applying Article (175), unless the lessor's fault caused the damage, such as knowing the leased property needs repairs and neglecting them, as performance of the obligation in this case became impossible due to their action, applying paragraph (b) of Article (176).

After the paragraphs established the rules related to the repairs the lessor is obligated to perform and the consequences of not fulfilling them, the third paragraph allows the contracting parties to agree contrary to the provisions of the first and second paragraphs, indicating that these provisions are not of public order. The parties may agree to exempt the lessor from this obligation, so they are not required to perform these repairs, or agree to reduce this obligation, such as agreeing to exempt the lessor from certain types of repairs, not all, or agreeing to limit the lessee's right to a rent reduction without the right to termination. It is also permissible to agree to increase this obligation, such as agreeing that the lessee may perform necessary repairs at the lessor's expense, even if they are not urgent, without needing a court request.

What the paragraph decided is merely an application of what Articles (173) and (174) contain in the general rules allowing the contracting parties to agree to amend the liability provisions imposed on the debtor in the contract by exempting, reducing, or increasing them. When stipulating the exemption or reduction of the lessor's obligation, it must not be due to their fraud or gross negligence, applying those rules.

It is worth noting that if the lessor stipulates exemption from necessary repairs and the lessee performs them at their expense, this does not prevent the lessee from recovering what they spent from the lessor after the lease contract ends according to the rules of unjust enrichment, unless otherwise agreed.

If there is doubt in interpreting the exemption clause from the lessor's obligation to perform necessary repairs and the scope it covers, or in interpreting the clause reducing or increasing this obligation, the doubt is interpreted in favor of the party bearing the burden of this clause, applying Article (104); in the case of exemption or reduction, the doubt is interpreted in favor of the lessee, and in the case of increase, it is interpreted in favor of the lessor.

Related To

Article 419

1. The lessor shall perform all necessary repairs required for the full use and enjoyment of the leased thing, including repairing any defects that would affect such use and enjoyment.

2. If the lessor, after being notified, fails to perform the repairs provided for in paragraph (1) of this Article, the lessee may, without prejudice to his right to demand termination of the lease or reduction of the rent, obtain the court’s permission to perform the repairs and he may demand reimbursement from the lessor for the costs of such repairs to the extent that is customarily acceptable. If such repairs are urgent or customarily deemed minor, the lessee may, without obtaining the court’s permission, perform the repairs and deduct their costs from the rent to the extent accepted by custom. In all cases, the lessee shall provide the lessor with an account of such repairs.

3. The lessor and the lessee may reach an agreement contrary to the provisions stipulated in paragraphs (1) and (2) of this Article.