tenants. Later he changed his mind and asked the seller to get rid of a tenant. The court held that the remission was valid although it was not in writing and was without apparent causa donandi or intention to confer a liberality. The buyer had allowed the tenant to stay and continue to use garage space because the tenant happened to own another house in which the buyer himself was a tenant, and so he was looking after his own interests.

portugal

Realty can recover the unpaid rent from Travel unless the parties have agreed to extinguish the debt or to a modification of the contract. Whether they have is not clear.

According to art. 863 of the Civil Code, the creditor can always extinguish his claim by a contract with the debtor. Such a contract is called a remission (remissão). If the remission were done with the intention of acting out of liberality, the transaction is considered a donation (art. 863(72)), and it would have to be contained in a written document. Here, however, Realty was not acting with such an intention. Therefore, it would not be able to recover that amount.

The situation might also be considered as a conditional modification of the lease by agreement of the parties. According to art. 406 of the Civil Code, the parties can always modify the contract if they both agree. If they have, Realty cannot rely on the initial contract.

It is possible, however, that the agreement between Realty and Travel should be construed, not as one to reduce the amount of rent due, but as one not to claim the amount due until Travel is in a position to pay. In this case the duty to pay the other part of the original rent remains as an obligation cum potuerit. According to art. 778(1) of the Civil Code, it can be claimed only if the creditor proves that the debtor is able to pay.

Thus the solution of this case depends on a question of fact as to how the agreement between Realty and Travel is interpreted.

italy

If the judge determines that Realty meant to reduce the rent and not merely to accept partial payment, reserving its right to receive full payment at a subsequent time, Realty cannot recover the remainder from Travel. The question is one of interpretation to be resolved by the rules provided by arts. 1362–71 of the Civil Code.

point in question into consideration, to find out what kind of agreement reasonable people would have made (ergänzende Auslegung).18 All of the circumstances of the case have to be taken into account, but if there are no contrary indications, it is more likely that the parties intended to defer payment because people are not expected to act altruistically in a business relationship.

Although there is no authority on this point, there are provisions in the Civil Code that reflect the same idea. Sections 612, 632, and 689 provide that certain kinds of contracts are presumed to be made in return for compensation, even if the contract does not mention it, when the service in question is not normally performed free of charge. Here, it is unlikely that Realty wanted to renounce its claim forever even if Travel’s economic situation improved.

greece

Realty’s agreement that Travel could pay half the agreed rent for the duration of the economic recession is valid by virtue of the principle of freedom of contracts (art. 361 of the Civil Code).

If Realty had expressly reserved its right to recover the other half of the rent originally agreed after the end of the economic recession then Realty would be able to do so. If it did not do so expressly, then the agreement must be interpreted in accordance with arts. 173 and 200 of the Civil Code. Article 173 provides: ‘When interpreting a declaration of will, the true intention shall be sought without adhering to (the literal meaning of) the words.’ Article 200 provides: ‘Contracts shall be interpreted according to the requirements of good faith taking into consideration business usage.’

The question, then, is what the parties intended, taking into account good faith and usage. If the parties did not understand the same thing, then the meaning prevails which the declarant expected that the recipient could and should have understood.19 Accepted views on business transactions would play a role but the specific circumstances and the capabilities of the parties would be crucial.20

Consequently, in the present case, Realty would not be entitled to recover the amount from Travel.21

18BGHZ 9 (1953), 273 (278).

19Stathopoulos in Georgiadis and Stathopoulos, Civil Code, art. 173, no. 8; art. 200, no. 11;

21 The proper application of the rules of interpretation is subject to judicial control. Ibid.