Riscurile în contractul de leasing
Risks under the lease agreement

Summary/Abstract: This article frames a new vision on the consequences of fortuitous destruction of property standing for the lease agreement’s object. It is hereby attempted a reanalysis of the legal nature of user rights and accurate identification of general rules that would apply to risks under the lease agreement, with the view to conclude that the special rule required provided for in Article 10 (f) of Government Ordinance no. 51/1997 is not divergent as to these ones. The user’s right to use is not to be assimilated to the lessor’s right, since it fails to display the characteristics of a right to claim, but rather of a real right. The right of option conferred upon the user is not a right to claim, either, but a potestative right. Distinctions are made between property risk, contract risk and duty risk. In case of fortuitous destruction of property, the rule of law applicable is Article 971 in the Civil Code (applicable not only to property translative agreement, but also to real rights translative agreements, provided that the actual effect of the Agreement is automatic), or, alternatively, the general rule res perit debitori, derived from Article 1020 in the Civil Code (in those cases in which alienation does not automatically generate the real effect, which is still dependent on the alienator’s act). Application of the rule res perit domino in the leasing field is defective because, on the one hand it is a false rule in contractual matters and, on the other hand, the agreement is not translative of ownership If the financial corporation has submitted rights arising from the sales agreement concluded with the supplier, he has fulfilled his essential duty, therefore the legislature’s option so that the financial corporation retains the right of lease installments is fair. Should a party fulfill its contractual duties, it is entitled to consideration, even if the right transferred passed off fortuitously. This being the case, we do not deal with a waiver to the rule of res perit debitori, the issue of contractual risks not occurring in the technical sense. The single real problem at issue relates to the property work, which is divided among holders of rights exercised over the property. The risk associated with the payment of residual value is incumbent upon the financial corporation because, contractually, it can no longer perform its duty to sell the property (res perit debitori). On the other hand, it bears the property risk within the boundaries of right it enjoys. The insurance indemnity received by the financial corporation can only be kept within the limits of its insurable interest. This insurable interest consists in the residual value and the guarantee that compensation, as replacement of property destroyed, confers upon the financial corporation for the payment of lease installments. The right to a share of the insurance indemnity is conveyed as an accessory right over the property constituted under the user’

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