Some aspects about the content of the obligations of conservation and restitution of the leased property. Their historical and dogmatic profiles

Abstract

In the lease agreement, the obligation to deliver, as in any title of mere possession, is manifested when the contract is concluded –by the lessor– and at the time of its termination –the reins- tatement of the tenant’s position. The examination of the restitution obligation and its correct fulfillment requires first stopping at the two remaining obligations of the lessee: that of using and enjoying the thing for the purpose for which it was rented and that of preserving the thing. As regards the conservation of the thing, this differs from that which includes the obligation of delivery in the obligations to give a certain species or body. The reason for this difference is that the obligation to give implies the transfer of the thing, while the obligation to deliver in the lease only involves the transfer of the use and enjoyment of the thing to the lessee.

The conservation from the delivery by the lessor to the lessee and until the return of the thing does not exclude all deterioration of the thing, there are some that the lessor must bear. These are those that come from the legitimate use and enjoyment of the thing. In the case of the restitution of the thing with deterioration, the sole existence of these does not determine the breach of the lessee and, therefore, the attribution of liability, but the lessor must prove the imperfect compliance by the lessee of its obligation to conserve. The lessee is not released from liability due to the absence of negligence, but because the operative fact of liability is not met, which he considers, above all, a breach of contract.