Measures of operational influence applied by the parties to the lease agreement in the performance of their obligations at the expense of the counterparty

Abstract

The scientific work is devoted to one of the three types of measures of operational influence – the fulfillment of obligations at the expense of the debtor, which can be used by the parties to the lease in case of violation of their rights by the counterparty.

It is established that the modern civil legislation defines three cases when the creditor can fulfill the duty of the debtor at his expense. Thus, if during the use of the thing are found defects that prevent its use, the lessee can eliminate such shortcomings on his own and claim damages. If deficiencies are identified, the lessee must draw up a defect report and send it to the lessor. If the lessor refuses to eliminate such deficiencies, the lessee, involving an expert, has the right to prepare cost documentation and begin to eliminate the deficiencies. Otherwise, self-determination of damages, while eliminating the shortcomings of the lessee, the court may recognize as an abuse of rights. When the defects of the thing are eliminated by a third party, when concluding a contract with such a person, it is necessary to indicate the elimination of those shortcomings that arose through the fault of the lessor, because on the basis of this contract, estimate documentation and the act of acceptance-transfer will be determined the costs that the lessor must reimburse.

The next case of fulfillment of the obligation at the expense of the counterparty is the overhaul of the thing by the lessee and the inclusion of repair costs in the fee for the use of the thing or reimbursement of the cost of repairs. However, this norm does not apply to the legal relationship of lease of state or communal property, given their mandatory regulation.

The third manifestation of the measure of operational influence related to the fulfillment of the obligation by the debtor at the expense of the debtor in the lease agreement is the right of the creditor to insure the leased object instead of the debtor, provided by the Law of Ukraine «On Land Lease». According to case law, if the obligation to insure the land is imposed on the lessee and he has not fulfilled it, the lessor should take the opportunity to insure the leased object at the expense of the debtor, if provided by contract, or require performance in kind, because non-fulfillment of the obligation to insure is not a ground for termination of the contract.