Explanation of Article 438
When Article (437) decided on the permissibility of the tenant subletting or assigning the lease contract if it was with the landlord's permission or approval, this article came to restrict the actions of the tenant authorized to sublet or assign with the limits of the benefit he has under the original lease contract, in terms of type and duration. The tenant authorized to sublet may not lease to another what exceeds the limits of the type of benefit or its duration. For example, someone who rents a property for personal residence for a year cannot sublet it as hotel apartments, as this exceeds the agreed type of benefit. Similarly, he cannot lease it to others for personal residence for more than a year, as it exceeds the benefit limits in terms of time.
If the tenant violates and enters into a sublease contract or assigns the contract to others beyond the agreed type of benefit with the landlord, the tenant is considered in breach of his obligation, and general rules apply. The landlord may request specific performance by asking for the eviction of the subtenant or the assignee from the leased property. The landlord may also request the termination of the original contract concluded between him and the original tenant, and the rules of judicial termination apply. The court, at its discretion, may refuse the termination request and suffice with obligating the subtenant or the assignee to vacate the leased property if the breach does not warrant termination.
If the tenant enters into a sublease contract that exceeds the duration of the original contract, the sublease contract does not take effect for the excess period against the landlord unless he approves it. The lease for the excess period approved by the landlord is considered an independent lease from the sublease contract, concluded directly between the landlord and the subtenant.
Related To
Article 438
The lessee who is permitted to sublease the leased thing or assign the contract to a third party shall adhere to restrictions on the use and enjoyment of the leased thing in terms of type and duration.