The State is the exclusive holder of the powers relating to contractual obligations (Article 149.1.8. CE). This probability of monopoly power was not a whim of the constituent. Only the State (STC 132/2019) is capable of guaranteeing the autonomy of the will of individuals and of doing so under conditions of equality throughout the national territory. At the same time, only the State can (and should) legitimately intervene in the provisions of private contracts when exceptional situations so demand for the benefit of the general interest and the economy as a whole.
The last three years, from the appearance of Covid-19 to the military invasion of Ukraine, with its aftermath of generalized high levels of inflammation and high energy supply prices, have put public springs at any geographical, regional, and regional level in tension. and municipal) to minimize -sometimes against nature and always in a heterodox and disorderly manner with a chaotic touch- the devastating effects of the “black swans” that squawk on the economy of individuals and families. It has been three years – how many do we still have left? – of diminishing individual liberties and erosion of legal transactions between individuals due to the intervention of laws and administrative authorities in contracts, a matter that is dominated by the imperative “pact sunt servanda”.
Let’s look at the map at the extreme northeast of the Peninsula, where the ultramontane strikes. When the tsunami of the pandemic reached its crest, the Generalitat promulgated Decree-Law 34/2020, of October 20, by which its unbridled intervention -of order and command- made an appearance in the free market for the rental of business premises. Theoretically, it could happen that the Catalan norm was a legitimate reaction to the declaration of suspension or restriction of most economic activities by the Government of the nation as a corollary of the first state of alarm. But the reader will soon see that it was another pro-independence delusion, this time, like so many other rudeness and skirmishes that are preparing the ground until the final defeat, in C minor. Because the only vocation that the independence movement has is its facility for entanglement, farce and charades without paprika. What they like is bothering their neighbors. Shoveling them, like good rednecks, with coarse salt, like a certain anti-Semitic mayoress.
Article 1 of the Decree authority (“Modification of the contract conditions”) authorizes the lessee, in the event that “the competition” had adopted the suspension of the activity carried out on the premises or measures to restrict the material use of the property, to require the landlord “a reasonable and equitable modulation” of the conditions of the contract. The purpose of restoring the balance of reciprocal benefits prevails (business income falls, rental income remains constant), altered in favor of the lessor as a result of public decisions adopted to guarantee the health of citizens.
Article 2 (“Rules applicable in the absence of agreement between the parties”) sends to the attic the reluctance of the owner of the property to “modulate” nothing, he stops nonsense and unsheaths the club to crush any hint of resistance. It reads as follows: “In the event that the parties do not reach an agreement through negotiation or mediation [¿por quién, por el capellán de
los hermanos maristas de la localidad?] Within a month from the request provided for in section 1, the following rules shall apply:
a) In case of suspension of the development of the activity, the rent and other amounts owed [sic] be reduced by fifty percent with respect to those in force, while the suspension measure lasts.
b) In case of restriction of the material use of the property, the rent and other amounts owed by the partial lessee must be reduced, while the restriction measures last, in a proportion equal to half of the loss of use of the property, objectively measured due to the reduction of capacity or hours or due to other limitations imposed by the norm.”
Thus, this is how the guys from ERC et alii understand the “reasonable and equitable modulation” of the conditions of the contract. Encouraging tenants to demand a reduction in rent of more than 50%, because if the owner does not attend to his claim, he will wait until the competent judge says that the ripe fruit should fall into his hands. And humiliating the owners to put, even if they do not wear mourning, the neck at the height of the basket located just below the guillotine.
But luckily we have the Constitutional (despite its sevens and its broken ones). Because STC 150/2022 has just declared the unconstitutionality and radical nullity of the precepts that were literally reproduced. The Generalitat –says the TC- does not have the power to impose a change in the regulation of lease contracts (neither those for housing nor those relating to “different uses”). The Constitution establishes a reserve in favor of the state legislator that excludes the interference of the autonomous legislator to condition or limit the freedom of the parties. Its justification is clear: a civilized political community requires a common system throughout the national territory and there can be no free and rational economy without the existence of the market unit.
The Urban Leasing Law (articles 4.3 and 17.1) provides for the freedom of agreements regarding the determination of rent. The pre-eminence of the autonomy of the will is consecrated by a legal source of a state nature: article 1,255 of the Civil Code. The “device system” (and not imperative) that governs contracts finds its highest expression in “individual freedom” (Article 1 CE) and the freedom of business (Article 38 CE). The State has the exclusive competence to regulate the access of individuals to decent housing (article 47 CE) and also to guarantee the aforementioned principle of free enterprise.
However, we must not petrify the agreements adopted when exercising individual freedom. Life is a sum of circumstances. Suppose that the parties to a contractual relationship regulate the conditions of a property lease at a given time (contingency X) and at another time (contingency V) and during the term of the legal transaction there is a substantial factual change beyond the control of the parts. In cases like the one referred to in the abstract, it is not unlawful to accommodate or adapt the stipulations of the contract to the new times. The Latin brocardo “rebus sic stantibus” (“things being that way”) is a general principle of law that supports the necessary changes. But who decides the future of the relationship? Generally, the same parties -in a further twist of the principle of autonomy of the will- or, failing that, the courts of justice. Rarer is its positivization in a text and, of course, it is worth the same as the colored paper that wraps a chocolate bar if the dictator of change does not exhibit any valid title to order the lives of others with strange impositions on the contracting parties.
I said above that the TC has declared the nullity of article 2 of Decree-Law 34/2020. That precept, in good Law, has never existed. Then, the judgment of the TC should have a temporary effectiveness “ex tunc” This consequence, which goes without saying, would give a legitimate title to the owners of business premises harmed by this unconstitutional norm to request the damages suffered. However, and although it is not authorized by its Organic Law, the TC, once again, has not wanted to get into trouble and has declared the consolidated legal situations unscathed (FJ 5 of the sentence). Again, the TC encourages the bad arts of the worst legislator. Quite a provocation to the citizen, who cannot take the court’s resolutions that, theoretically, guarantee his fundamental rights too seriously. The supreme instances of Spanish democracy continue to dance a tango, as if it were a cuckold, with our Rule of Law.
