As it is already recognized, the implementation of the Royal Decree 463/2020 has been decreed to suspend “the opening to the public of retail establishments “, collecting a list of exceptions, which means for SMEs and Self-employed the impossibility of generating incomes (therefore the lack of cash Flow), at the same time there are all those ‘’standard’’ payment obligations for each entrepreneur, such as payrolls and quotes, tributes and taxes and the rental of the commercial premises necessary for the development and the maintenance of the activity.
Due the exceptional situation, it is also mandatory, the closure of commercial places usually opened to the public for all those businesses that are not considered “essential”, what action should be carried out by the employer when at the begin of the month April he will have to pay the rent of his leasing commercial agreement.
The jurisprudence states that, in any private contract, there is a pact or clause that obliges to comply with what has been agreed as long as the conditions of the same do not vary as much as they can break the balance of the contract: the so-called “rebus sic stantibus” clause, principle according to which it is understood that the stipulations established in contracts take in consideration the concurrent circumstances at the time they occur, and this means that any substantial alteration can lead to the modification of those stipulations.
The AP Barcelona, sec. 13ª, S 06-03-2014, nº 109/2014, rec. 158/2013 stated the requirements in order to apply this principle:
Based on the principle of the ‘’bona fide’’ (arts. 7 and 1258 CC) that the inclusion of an implicit’’ rebus sic stantibus’’ clause in the contract must be included. The principle of ‘’bona fide’’ appears contained in the same precept of the Civil Code in which is stated the opposite, that is, the principle ‘’pacta servanda sunt’’ whereas the doctrine of the ‘’rebus sic stantibus’’ clause is an exception or a limitation.
The judgment of the 10th February 1997 includes the jurisprudential requirements for the application of this implicit clause of the “rebus sic stantibus”: “a) an extraordinary alteration of the circumstances at the time of fulfilling the contract in relation to those present at the time of its conclusion; b) an exorbitant disproportion, beyond all calculation, between the benefits of the contracting parties that truly collapse the contract by annihilation of the balance of benefits, and c) that all this occurs due to the occurance of radically unpredictable circumstances “.
Legal mayor Doctrine therefore refers on different occasions to the necessary existence of an event of force majeure, which has a strong impact on the set of rights and obligations assumed by the parties in the contract.
In the approach to the restriction to stay open which strongly influences the retail trade and commerce , we consider legally possible to request or claim to the landlords to suspend and / or decrease or postpone the payment of the next monthly rent in favor of their tenants to rebalance the benefits of both parties to the contract.
This request/petition must be made through a negotiation with the landlord, firstly through email or any other system of e-communication or verbally, successively through an official communication and, if the negotiation ends up with acceptance, lastly with the formalization through an ‘’addendum’’ to the Contract lease.