Η προστασία του μισθωτή στη σύμβαση χρηματοδοτικής μίσθωσης κινητών πραγμάτων
Βρέντζου, Κατερίνα Π.
Σύμβαση Leasing -- Δίκαιο και νομοθεσία Lease and rental services -- Law and legislation
Πάντειο Πανεπιστήμιο Κοινωνικών και Πολιτικών Επιστημών
Leasing is a modern economic and legal institution with a great impact and implementation at a national and international level. Because of its particular legal nature and also of the particular involvement of the contractual parties’ interests, there are constantly many problems that come up, leading the contract at an abnormal evolution. Under these circumstances, it comes up the question of protecting the lessee of the contract, when he is the weak part of the negotiation.Because of the existence of contractual clauses and general terms and conditions for transactions, that are unilaterally imposed by the lessor to the lessee, in fact inviting him to enter into contract, the last one may be protected by the general provisions of the Civil Code (CC 174, 178, 200, 281, 288) as well as by the l. 2251/1994 “for the protection of the consumers”, since the lessee as well as the lessor of the Leasing contract come under the meaning of the consumer and supplier of the above-mentioned law.Thus, it is possible to successfully control the contractual clauses for abuse or not, under the general provisions at which the meanings of good faith, good morals and social and economic aim of the contract are outlined but also under the l. 2251/1994 and so they may be annulled as abusive, since it is found out that they are the result of an excessive breach of the contractual balance against the lessee. Thus, the lessee, even though his ability to denounce the contract is not mentioned at the relevant law and at the contractions, may in fact realize it since this is deemed as abusive according to the above.In case that the contract is denounced by the lessor, something that means that him as the owner of the thing may enter into its direct search by the lessee, with the ability of the compulsory execution of the decision (he has the possibility to exercise against the lessee precautionary measures and a regular action of occupancy), the lessee may be protected, if he proves that the contract was not ended with validity, while he may exercise the stay of proceedings of the article CCivPr 933, combining it with the suspend request of the article CC 938. With regard to the future lease charges until the end of the contract, which the lessor requests with his denouncement, at first this is considered as valid. However, it must be deducted by the due of the lessee the discount interest as well as the non-amortized value or – in case this has been amortized – the commercial value of the thing.If the movables, of which the lessee obtains under the contract their use, occupancy and possession, have real defects, then he may directly turn against the supplier of the sales contract because of the authorization clause and the assignment of the relevant rights and obligations of the lessor to him. Hence, under the articles CC 540 and next, he may ask for reparation or replacement of the thing, reduction on the price or even backing out of the contract as well as request damages for non execution of the contract.
Διπλωματική εργασία - Πάντειο Πανεπιστήμιο. Γενικό Τμήμα Δικαίου, ΠΜΣ "Δίκαιο και Ευρωπαϊκή Ενοποίηση", κατεύθυνση Ιδιωτικό Δίκαιο, 2006