Termination of the lease of a restaurant due to the Covid-19 epidemic – is it possible?

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Termination of the lease of a restaurant
due to the COVID-19 epidemic – is it possible?

Krakow, May 4, 2020

AND.       Entry          

  The COVID-19 epidemic will surpriseit probably affected everyone, reorganizing the lives of people around the globe, forcing us to adapt to the new social, economic and - above all - legal situation. The governments of individual countries have introduced a number of restrictions related to, among others: with the possibility of free movement, the need to use personal protective equipment, or the availability of commercial spaces and restaurants. Pursuant to the Regulation of the Minister of Health of March 13, 2020 on the declaration of an epidemic threat in the territory of the Republic of Poland (Journal of Laws of 2020, item 433), restrictions were imposed on conducting particular types of business activities, including those involving the preparation and serving of meals and drinks to guests. sitting at tables or guests making their own selection of dishes from the displayed menu, eaten on site (§ 5 section 1 point 1 letter a of the Regulation of the Ministry of Health). These restrictions were then maintained in the Regulation of the Council of Ministers of March 31, 2020 on the establishment of certain restrictions, orderaboutin and outaboutin connection with the occurrence of an epidemic (Journal of Laws 2020, item 566) and essentially amount to a total ban on conducting business activities until further notice (§ 9(1)(1) of the Regulation of the Council of Ministers). And they were also repeated in subsequent lockdowns. Currently in February 2021. the ban on the provision of catering services has been in place since October 2020, i.e. for almost five months.

            What will killcurrent situation, no one can say with certainty when - or if at all - the situation will return to normal. Restaurateurs and other people running catering businesses are trying to cope with these new realities. This industry is inextricably linked to renting commercial space in attractive locations, which often results in astronomical rents that ultimately have to be earned. So, in a situation where the activity de facto and de jure cannot be run, are the tenants of catering premises doomed to the specter of bankruptcy? The purpose of this article is to highlight the opportunities for entrepreneurs in the catering industry that are successfully used by law firms to defend the interests of tenants who have decided to ask us for support.

II.    Basic issues – admissibility of termination

            In the first orderIt is necessary to briefly look at the regulations that the legislator devoted to the lease agreement, and therefore the norms of Art. 659 and NKC The provisions on lease were built in accordance with the Pandect method of cascade of concepts, i.e. starting from general norms to specific regulations relating to stricto sensu to the premises lease agreement. Essentialia negotii lease agreements are specified in Art. 659 of the Civil Code, according to which: "By means of a lease agreement, the lessor undertakes to provide the tenant with an item for use for a specified or indefinite period of time, and the tenant undertakes toacić to the landlordabout"rent" and in accordance with Art. 680 of the Civil Code: "The provisions of the preceding chapter shall apply to the lease of premises, subject to the provisions below." It follows that lease agreements for catering premises may be shaped by the parties as fixed-term or indefinite obligations. Determining which type of relationship we are dealing with in given circumstances is crucial from the perspective of answering the question posed in the title.

            In the case of contractsfor those concluded for an indefinite period, Art. 673 § 1 of the Civil Code, according to which: "If the duration of the lease is not specified,aboutboth the landlord and the tenant may terminate the lease with due noticeaboutin contractual terms, and in their absence, within the deadlineaboutin statutory”. In the case of renting a premises, if the rent is payable monthly, the notice period referred to in the above-mentioned regulation is generally 3 months in advance.aboutd at the end of the calendar month (Article 688 of the Civil Code). It is controversial whether the above provision is mandatory or whether the notice period can be shortened by agreement of the parties to the lease agreement. Supporters of the view that this regulation is semi-imperative believe that this provision is intended to protect the tenant against too quick termination of the lease by the landlord.[1]. However, the opposite view seems to dominate in the literature, and has also been approved in the case law of common courts and the Supreme Court.[2]. This means that the statutory notice period may be modified in the lease agreement itself, and therefore, this issue must always be analyzed in concrete.

            Quite The situation of tenants who have concluded fixed-term contracts is different, because this relationship is assumed to be permanent, so the possibility of terminating it has been subject to certain restrictions by the legislator. Pursuant to Art. 673 § 3 of the Civil Code: "If the duration of the lease is specified, artaboutBoth the landlord and the tenant may terminate the lease in the cases specified in the contract. Therefore, termination of a fixed-term lease agreement is possible - as a rule - only if the parties provided for a termination clause in the contract. In the absence of such a clause, the tenant will not be able to terminate the lease relationship by unilateral legal action.[3]. So will any termination clause allow the tenant to end the lease? The answer to the question in the title comes down to the lawyer's favorite oneaboutin the phrase "it depends". There are various types of clauses in trade which, due to their content, are controversial. The controversial issue is whether the termination clause "for important reasons" is admissible due to the lack of specific circumstances, as required by Art. 673 § 3 of the Civil Code If we consider that this clause is permissible and the case law is heading in this direction[4], it seems that the situation caused by COVID-19 fits perfectly into the concept of "important reason". Even more doubts arise when defining the termination clause without specifying any circumstances justifying the termination (e.g. "each party has the right to terminate this agreement with one month's notice"). In all cases, the possibility of terminating the lease requires a thorough analysis of the individual provisions of the lease agreement so as not to expose the tenant to the ineffectiveness of the termination notice and possible contractual penalties, which are often stipulated by the parties in the agreements. The devil is often in the details, and properly interpreted lease agreements provide an independent and unambiguous basis for terminating them in the current situation.

            Therefore, in the absence of a notice clause in a lease concluded for a fixed period, the tenant is left with no chance of earlya better ending? Not necessarily. The legislator provided for several situations in which the obligatory relationship expires ex lege, or expires as a result of withdrawal from or termination of the contract.

III.  Warranty for defects in the premises – Art. 664 CC

            Pursuant to the content of Art. 664 § 2 of the Civil Code: "If the item had defects at the time of handing over to the lessee, ptaboutmake it impossible to use the goods as provided for in the contract, or if such defects arose later and the lessor, despite receiving notice, did not remove them in due time, or if the defects cannot be removed, the tenant may terminate the lease without observing the deadline.aboutin notice." The term "defect", within the meaning of the above-mentioned regulation, should be understood as both physical and legal defects of the leased item[5]. The legal defect has not been regulated by the legislator in the provisions on lease, therefore it is necessary to use the definition of a legal defect established in the provisions on the warranty on sale. Pursuant to Art. 5563 Civil Code, the concept of a legal defect of an item should be understood, among others, as: a situation in which a restriction on the use or disposal of an item results from a decision or judgment of a competent authority. It should be noted here that the doctrine raises doubts that the hypothesis of this provision - in addition to judgments or decisions, i.e. acts of an individual and specific nature - should also include restrictions resulting from regulations, i.e. acts of a general and abstract nature, however, such a qualification is not excluded. It is rightly pointed out that "(...) such encumbrances on real estate should be perceived as legal defects, including:aboutd due to legal restrictions make it difficult to use the item, contrary to the contract, i.e. contrary to the justified expectations of the buyer"[6], and therefore they are relativized in relation to the purpose of the concluded contract. There is no doubt that the primary purpose of renting premises for catering activities is to serve meals and drinks to guests, which is impossible in the current normative situation. With this in mind, it cannot be ruled out that the tenant of the catering premises will be able to effectively exercise the rights arising from the norm of Art. 664 § 2 of the Civil Code

IV.  Consequential impossibility to provide – Art. 495 CC

            NextOne regulation that could potentially prove helpful in resolving disputes with landlords is Art. 495 § 2 of the Civil Code, which establishes partial impossibility to provide services without fault. The impossibility of providing services has not been explicitly defined in the Act and in this respect two concepts compete with each other - the objective concept and the subjective concept. According to the objective theory of impossibility, performance is impossible if no one, not just the debtor under a specific obligation relationship, would be able to fulfill it. According to the subjective approach, impossibility occurs when the performance is objectively possible, but remains beyond the sphere of possibility of a specific person.[7].

            This is where it appearsHowever, the question is whether, due to the ban on conducting catering activities, it is possible to talk about - even partial - impossibility of providing services on the part of the landlord? After all Prima facie he continues to provide the space of the premises to the tenant, and - in principle - this is his basic obligation under Art. 659 in connection with joke. 680 of the Civil Code, however, an interpretation of the contract is not excluded, according to which the lessor is obliged to provide not just any space, but space suitable for the tenant to conduct a specific type of business. Therefore, if it were assumed that the lessor's performance has become partially impossible, and the provision of the service in part is not important for the tenant due to the purpose known to the other party (the purpose is to run a catering business), the tenant would be entitled to withdraw from the contract with reference to Art. 495 § 2 of the Civil Code, however, this is the most questionable - although possible - way of terminating the lease relationship.

UPDATE FEBRUARY 2021: And yet it turns out that this method has also found its acceptance in the eyes of the courts, not only as applied to gastronomy, but also to gyms and fitness centers.

V     Clause Rebus sic stantibus – art. 3571 CC

            For the endFinally, you should also refer to Art. 3571 CC, in which the clause was placed rebus sic stantibus, i.e. the clause of extraordinary change of relations. There is no doubt that since Roman times the fundamental principle of contract law has been the principle pacta sunt servanda. However, the legislator has provided an instrument that is intended to protect the parties to contractual relationships in the event of extraordinary circumstances that the parties could not have predicted when concluding the contract and which radically affect their legal or factual situation, which may lead to a situation in which the performance of the benefit for one of the parties parties will be associated with excessive difficulties or will pose a risk of significant loss.

            Certain vdoubts from the perspective of the application of the clause rebus sic stantibus The question arises whether a change in legal provisions can be considered an extraordinary change of circumstances, but one should agree with P. Machnikowski, who states: "The introduction of new prohibitions, impossible to predict and not applied in properly functioning societiesaboutin legal matters related to some particularaboutdifferent situation (e.g. natural disaster, epidemicą, armed conflict, serious economic crisis) should be considered, in my opinion, an extraordinary change in relationsaboutIn."[8]. The COVID-19 pandemic, as already mentioned in the introduction, surprised the whole world, including, of course, the parties to contractual relations. There is no doubt, therefore, that the situation resulting from its outbreak falls within the concept of an "extraordinary change in relations." The parties concluding the contract could not have foreseen it, and one of the parties - in this case, the tenant - experienced excessive difficulties or a significant loss. This instrument was introduced by the legislator to help the parties to contracts that cannot be performed in emergency situations, and such a situation is undoubtedly the state of epidemic.

            This is where he will markć it is necessary that the application of the clause rebus sic stantibus is only possible through court proceedings, which requires filing a lawsuit to establish a legal relationship[9]. In such a situation, the court has the power to determine the manner of fulfilling the obligation, the amount of the benefit, and even a decision to terminate the contract.

VI.  Summary

To sum up these considerations, it should be noted that the situation of tenants of catering premises is difficult, although it is far from hopeless. There are many legal instruments that allow the termination of the lease relationship to the tenant's satisfaction. Although a full guarantee of the effectiveness of the above-described legal measures and actions taken cannot be given - in our opinion - the proper application of the provisions discussed should result in achieving the intended effect of terminating the lease relationship.

Very often, we receive encouraging information that landlords understand the tenants' situation and agree to renegotiate the lease terms, e.g. by significantly reducing the rent or ceasing to collect it for a specified period of time, or even terminating contracts by mutual consent. Such cooperation is undoubtedly the most desirable situation. Sometimes, however, it is necessary to remember that both sides have very strong legal arguments in this dispute.

UPDATE FEBRUARY 2021: It turns out that the above-mentioned methods are justified and applied. legal standards such as Art. 495 or Article 357[1] not only to terminate lease contracts, but also, and perhaps even primarily, to rent reductions and complete avoidance of payment of rent during total lockdowns. And such actions find their protection in court decisions - cf. Decision of the District Court in Warsaw of September 28, 2020, XXVI GCo 189/20.

Author: Antoni Skoczek*      

OUR LAW OFFICE ASSISTS TENANTS IN CONFLICT SITUATIONS, IN COURT DISPUTES, PREPARING TERMINATION DOCUMENTS, AND IN TALKS WITH LANDLORDS IN ORDER TO RESULT IN A REDUCTION OF THE RENT OR TERMINATION OF THE RENTAL RELATIONSHIP WITH SATISFACTION IONOUS ON ALL SIDES. DO YOU HAVE ADDITIONAL QUESTIONS? DO YOU NEED LEGAL ASSISTANCE IN TERMINATING A RENTAL AGREEMENT?

WELCOME TO ADD COMMENTS BELOW OR CONTACT THE AUTHOR VIA BIURO@KLODZINSKIKANCELARIA.PL


*The author is a repeatedly appreciated expert in the field of civil and bankruptcy law, a permanent member of the Law Firm's Team, a graduate of the Faculty of Law and Administration of the Jagiellonian University, completing legal counsel training at the District Chamber of Legal Advisors in Krakow, co-editor and co-author of the book Civil law. Comments on the judgments of the Supreme Court, Krakow 2019.

[1] K. Pietrzykowski, [In:] K. Pietrzykowski (ed.), Commentary of the Central Committee, vol. 2, 2018, art. 688, Nb 3

[2] judgment of the Supreme Court of April 6, 2000, II CKN 264/00, OSNC 2000, No. 10, item 186; ed. SA in Katowice of February 23, 2005, I ACa 1951/04, OSAK 2005, No. 2

[3] J.Gaboutrecki, G. Matusik, [In:] K. Settlement (ed.), Volume III B. Civil Code. Comment. Commitments. Detailed part. Act on payment termsaty, Legalis 2020, reference to art. 673, Nb. 13.

[4] resolution Supreme Court of November 21, 2006, III CZP 92/06, OSNC 2007, No. 7–8, item 102)

[5] J. Panowicz-Lipska [In:] M. Gutowski (ed.), Civil Code. Volume III. Commentary on art. 627–1088, Warszawa 2019, comm. to art. 664, Nb. 2; judgment of the Supreme Court of November 27, 1973, II CR 335/73, Bull. SN 1974, No. 5, item 84.

[6] so right F. Zoll, Warranty. Seller's liability, Warsaw 2018, chapter II, § 1, XII.

[7] Z. Radwański, [in:] Obligations - general part, Warsaw 2010, p. 323.

[8] P. Machnikowski [In:] Anger (ed.), Civil Code. Comment, Warsaw 2019, comm. to art. 3571 Nb. 7.

[9] P. Machnikowski [In:] Anger (ed.), Civil Code. Comment, Warsaw 2019, comm. to art. 3571 Nb. 12.

 

 

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Termination of the lease of a restaurant
due to the COVID-19 epidemic – is it possible?

Krakow, May 4, 2020

AND.       Entry          

  The COVID-19 epidemic will surpriseit probably affected everyone, reorganizing the lives of people around the globe, forcing us to adapt to the new social, economic and - above all - legal situation. The governments of individual countries have introduced a number of restrictions related to, among others: with the possibility of free movement, the need to use personal protective equipment, or the availability of commercial spaces and restaurants. Pursuant to the Regulation of the Minister of Health of March 13, 2020 on the declaration of an epidemic threat in the territory of the Republic of Poland (Journal of Laws of 2020, item 433), restrictions were imposed on conducting particular types of business activities, including those involving the preparation and serving of meals and drinks to guests. sitting at tables or guests making their own selection of dishes from the displayed menu, eaten on site (§ 5 section 1 point 1 letter a of the Regulation of the Ministry of Health). These restrictions were then maintained in the Regulation of the Council of Ministers of March 31, 2020 on the establishment of certain restrictions, orderaboutin and outaboutin connection with the occurrence of an epidemic (Journal of Laws 2020, item 566) and essentially amount to a total ban on conducting business activities until further notice (§ 9(1)(1) of the Regulation of the Council of Ministers). And they were also repeated in subsequent lockdowns. Currently in February 2021. the ban on the provision of catering services has been in place since October 2020, i.e. for almost five months.

            What will killcurrent situation, no one can say with certainty when - or if at all - the situation will return to normal. Restaurateurs and other people running catering businesses are trying to cope with these new realities. This industry is inextricably linked to renting commercial space in attractive locations, which often results in astronomical rents that ultimately have to be earned. So, in a situation where the activity de facto and de jure cannot be run, are the tenants of catering premises doomed to the specter of bankruptcy? The purpose of this article is to highlight the opportunities for entrepreneurs in the catering industry that are successfully used by law firms to defend the interests of tenants who have decided to ask us for support.

II.    Basic issues – admissibility of termination

            In the first orderIt is necessary to briefly look at the regulations that the legislator devoted to the lease agreement, and therefore the norms of Art. 659 and NKC The provisions on lease were built in accordance with the Pandect method of cascade of concepts, i.e. starting from general norms to specific regulations relating to stricto sensu to the premises lease agreement. Essentialia negotii lease agreements are specified in Art. 659 of the Civil Code, according to which: "By means of a lease agreement, the lessor undertakes to provide the tenant with an item for use for a specified or indefinite period of time, and the tenant undertakes toacić to the landlordabout"rent" and in accordance with Art. 680 of the Civil Code: "The provisions of the preceding chapter shall apply to the lease of premises, subject to the provisions below." It follows that lease agreements for catering premises may be shaped by the parties as fixed-term or indefinite obligations. Determining which type of relationship we are dealing with in given circumstances is crucial from the perspective of answering the question posed in the title.

            In the case of contractsfor those concluded for an indefinite period, Art. 673 § 1 of the Civil Code, according to which: "If the duration of the lease is not specified,aboutboth the landlord and the tenant may terminate the lease with due noticeaboutin contractual terms, and in their absence, within the deadlineaboutin statutory”. In the case of renting a premises, if the rent is payable monthly, the notice period referred to in the above-mentioned regulation is generally 3 months in advance.aboutd at the end of the calendar month (Article 688 of the Civil Code). It is controversial whether the above provision is mandatory or whether the notice period can be shortened by agreement of the parties to the lease agreement. Supporters of the view that this regulation is semi-imperative believe that this provision is intended to protect the tenant against too quick termination of the lease by the landlord.[1]. However, the opposite view seems to dominate in the literature, and has also been approved in the case law of common courts and the Supreme Court.[2]. This means that the statutory notice period may be modified in the lease agreement itself, and therefore, this issue must always be analyzed in concrete.

            Quite The situation of tenants who have concluded fixed-term contracts is different, because this relationship is assumed to be permanent, so the possibility of terminating it has been subject to certain restrictions by the legislator. Pursuant to Art. 673 § 3 of the Civil Code: "If the duration of the lease is specified, artaboutBoth the landlord and the tenant may terminate the lease in the cases specified in the contract. Therefore, termination of a fixed-term lease agreement is possible - as a rule - only if the parties provided for a termination clause in the contract. In the absence of such a clause, the tenant will not be able to terminate the lease relationship by unilateral legal action.[3]. So will any termination clause allow the tenant to end the lease? The answer to the question in the title comes down to the lawyer's favorite oneaboutin the phrase "it depends". There are various types of clauses in trade which, due to their content, are controversial. The controversial issue is whether the termination clause "for important reasons" is admissible due to the lack of specific circumstances, as required by Art. 673 § 3 of the Civil Code If we consider that this clause is permissible and the case law is heading in this direction[4], it seems that the situation caused by COVID-19 fits perfectly into the concept of "important reason". Even more doubts arise when defining the termination clause without specifying any circumstances justifying the termination (e.g. "each party has the right to terminate this agreement with one month's notice"). In all cases, the possibility of terminating the lease requires a thorough analysis of the individual provisions of the lease agreement so as not to expose the tenant to the ineffectiveness of the termination notice and possible contractual penalties, which are often stipulated by the parties in the agreements. The devil is often in the details, and properly interpreted lease agreements provide an independent and unambiguous basis for terminating them in the current situation.

            Therefore, in the absence of a notice clause in a lease concluded for a fixed period, the tenant is left with no chance of earlya better ending? Not necessarily. The legislator provided for several situations in which the obligatory relationship expires ex lege, or expires as a result of withdrawal from or termination of the contract.

III.  Warranty for defects in the premises – Art. 664 CC

            Pursuant to the content of Art. 664 § 2 of the Civil Code: "If the item had defects at the time of handing over to the lessee, ptaboutmake it impossible to use the goods as provided for in the contract, or if such defects arose later and the lessor, despite receiving notice, did not remove them in due time, or if the defects cannot be removed, the tenant may terminate the lease without observing the deadline.aboutin notice." The term "defect", within the meaning of the above-mentioned regulation, should be understood as both physical and legal defects of the leased item[5]. The legal defect has not been regulated by the legislator in the provisions on lease, therefore it is necessary to use the definition of a legal defect established in the provisions on the warranty on sale. Pursuant to Art. 5563 Civil Code, the concept of a legal defect of an item should be understood, among others, as: a situation in which a restriction on the use or disposal of an item results from a decision or judgment of a competent authority. It should be noted here that the doctrine raises doubts that the hypothesis of this provision - in addition to judgments or decisions, i.e. acts of an individual and specific nature - should also include restrictions resulting from regulations, i.e. acts of a general and abstract nature, however, such a qualification is not excluded. It is rightly pointed out that "(...) such encumbrances on real estate should be perceived as legal defects, including:aboutd due to legal restrictions make it difficult to use the item, contrary to the contract, i.e. contrary to the justified expectations of the buyer"[6], and therefore they are relativized in relation to the purpose of the concluded contract. There is no doubt that the primary purpose of renting premises for catering activities is to serve meals and drinks to guests, which is impossible in the current normative situation. With this in mind, it cannot be ruled out that the tenant of the catering premises will be able to effectively exercise the rights arising from the norm of Art. 664 § 2 of the Civil Code

IV.  Consequential impossibility to provide – Art. 495 CC

            NextOne regulation that could potentially prove helpful in resolving disputes with landlords is Art. 495 § 2 of the Civil Code, which establishes partial impossibility to provide services without fault. The impossibility of providing services has not been explicitly defined in the Act and in this respect two concepts compete with each other - the objective concept and the subjective concept. According to the objective theory of impossibility, performance is impossible if no one, not just the debtor under a specific obligation relationship, would be able to fulfill it. According to the subjective approach, impossibility occurs when the performance is objectively possible, but remains beyond the sphere of possibility of a specific person.[7].

            This is where it appearsHowever, the question is whether, due to the ban on conducting catering activities, it is possible to talk about - even partial - impossibility of providing services on the part of the landlord? After all Prima facie he continues to provide the space of the premises to the tenant, and - in principle - this is his basic obligation under Art. 659 in connection with joke. 680 of the Civil Code, however, an interpretation of the contract is not excluded, according to which the lessor is obliged to provide not just any space, but space suitable for the tenant to conduct a specific type of business. Therefore, if it were assumed that the lessor's performance has become partially impossible, and the provision of the service in part is not important for the tenant due to the purpose known to the other party (the purpose is to run a catering business), the tenant would be entitled to withdraw from the contract with reference to Art. 495 § 2 of the Civil Code, however, this is the most questionable - although possible - way of terminating the lease relationship.

UPDATE FEBRUARY 2021: And yet it turns out that this method has also found its acceptance in the eyes of the courts, not only as applied to gastronomy, but also to gyms and fitness centers.

V     Clause Rebus sic stantibus – art. 3571 CC

            For the endFinally, you should also refer to Art. 3571 CC, in which the clause was placed rebus sic stantibus, i.e. the clause of extraordinary change of relations. There is no doubt that since Roman times the fundamental principle of contract law has been the principle pacta sunt servanda. However, the legislator has provided an instrument that is intended to protect the parties to contractual relationships in the event of extraordinary circumstances that the parties could not have predicted when concluding the contract and which radically affect their legal or factual situation, which may lead to a situation in which the performance of the benefit for one of the parties parties will be associated with excessive difficulties or will pose a risk of significant loss.

            Certain vdoubts from the perspective of the application of the clause rebus sic stantibus The question arises whether a change in legal provisions can be considered an extraordinary change of circumstances, but one should agree with P. Machnikowski, who states: "The introduction of new prohibitions, impossible to predict and not applied in properly functioning societiesaboutin legal matters related to some particularaboutdifferent situation (e.g. natural disaster, epidemicą, armed conflict, serious economic crisis) should be considered, in my opinion, an extraordinary change in relationsaboutIn."[8]. The COVID-19 pandemic, as already mentioned in the introduction, surprised the whole world, including, of course, the parties to contractual relations. There is no doubt, therefore, that the situation resulting from its outbreak falls within the concept of an "extraordinary change in relations." The parties concluding the contract could not have foreseen it, and one of the parties - in this case, the tenant - experienced excessive difficulties or a significant loss. This instrument was introduced by the legislator to help the parties to contracts that cannot be performed in emergency situations, and such a situation is undoubtedly the state of epidemic.

            This is where he will markć it is necessary that the application of the clause rebus sic stantibus is only possible through court proceedings, which requires filing a lawsuit to establish a legal relationship[9]. In such a situation, the court has the power to determine the manner of fulfilling the obligation, the amount of the benefit, and even a decision to terminate the contract.

VI.  Summary

To sum up these considerations, it should be noted that the situation of tenants of catering premises is difficult, although it is far from hopeless. There are many legal instruments that allow the termination of the lease relationship to the tenant's satisfaction. Although a full guarantee of the effectiveness of the above-described legal measures and actions taken cannot be given - in our opinion - the proper application of the provisions discussed should result in achieving the intended effect of terminating the lease relationship.

Very often, we receive encouraging information that landlords understand the tenants' situation and agree to renegotiate the lease terms, e.g. by significantly reducing the rent or ceasing to collect it for a specified period of time, or even terminating contracts by mutual consent. Such cooperation is undoubtedly the most desirable situation. Sometimes, however, it is necessary to remember that both sides have very strong legal arguments in this dispute.

UPDATE FEBRUARY 2021: It turns out that the above-mentioned methods are justified and applied. legal standards such as Art. 495 or Article 357[1] not only to terminate lease contracts, but also, and perhaps even primarily, to rent reductions and complete avoidance of payment of rent during total lockdowns. And such actions find their protection in court decisions - cf. Decision of the District Court in Warsaw of September 28, 2020, XXVI GCo 189/20.

Author: Antoni Skoczek*      

OUR LAW OFFICE ASSISTS TENANTS IN CONFLICT SITUATIONS, IN COURT DISPUTES, PREPARING TERMINATION DOCUMENTS, AND IN TALKS WITH LANDLORDS IN ORDER TO RESULT IN A REDUCTION OF THE RENT OR TERMINATION OF THE RENTAL RELATIONSHIP WITH SATISFACTION IONOUS ON ALL SIDES. DO YOU HAVE ADDITIONAL QUESTIONS? DO YOU NEED LEGAL ASSISTANCE IN TERMINATING A RENTAL AGREEMENT?

WELCOME TO ADD COMMENTS BELOW OR CONTACT THE AUTHOR VIA BIURO@KLODZINSKIKANCELARIA.PL


*The author is a repeatedly appreciated expert in the field of civil and bankruptcy law, a permanent member of the Law Firm's Team, a graduate of the Faculty of Law and Administration of the Jagiellonian University, completing legal counsel training at the District Chamber of Legal Advisors in Krakow, co-editor and co-author of the book Civil law. Comments on the judgments of the Supreme Court, Krakow 2019.

[1] K. Pietrzykowski, [In:] K. Pietrzykowski (ed.), Commentary of the Central Committee, vol. 2, 2018, art. 688, Nb 3

[2] judgment of the Supreme Court of April 6, 2000, II CKN 264/00, OSNC 2000, No. 10, item 186; ed. SA in Katowice of February 23, 2005, I ACa 1951/04, OSAK 2005, No. 2

[3] J.Gaboutrecki, G. Matusik, [In:] K. Settlement (ed.), Volume III B. Civil Code. Comment. Commitments. Detailed part. Act on payment termsaty, Legalis 2020, reference to art. 673, Nb. 13.

[4] resolution Supreme Court of November 21, 2006, III CZP 92/06, OSNC 2007, No. 7–8, item 102)

[5] J. Panowicz-Lipska [In:] M. Gutowski (ed.), Civil Code. Volume III. Commentary on art. 627–1088, Warszawa 2019, comm. to art. 664, Nb. 2; judgment of the Supreme Court of November 27, 1973, II CR 335/73, Bull. SN 1974, No. 5, item 84.

[6] so right F. Zoll, Warranty. Seller's liability, Warsaw 2018, chapter II, § 1, XII.

[7] Z. Radwański, [in:] Obligations - general part, Warsaw 2010, p. 323.

[8] P. Machnikowski [In:] Anger (ed.), Civil Code. Comment, Warsaw 2019, comm. to art. 3571 Nb. 7.

[9] P. Machnikowski [In:] Anger (ed.), Civil Code. Comment, Warsaw 2019, comm. to art. 3571 Nb. 12.

 

 

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