The Supreme Court repeated its criterion on classifying as insolvency claims any leasing installments arising after the declaration of insolvency, and interpreted the amendment introduced into article 61.2 of the Insolvency Act (“IA”) by the 2011 reform.

As on previous occasions,2 the Supreme Court examined the nature of obligations arising from leasing agreements considered abstractedly and confirmed their reciprocal nature: the lessee acquires the right to use a third-party object, and the lessor agrees to allow this use and maintain its unfettered use of the asset.

However, it specifies that, from a civil perspective, when exercising their contractual freedom, the parties can validly modulate or eliminate some of the typical agreement’s characteristic elements. This makes it necessary to review the clauses validly agreed in each case to determine whether the legal relationship arising from the leasing agreement still functions as a synallagmatic contract after the insolvency has been declared due to the reciprocal obligations pending fulfillment attributable to both parties.

In this case, the court considered insufficient the lessor’s obligation to allow the peaceful use of the object leased, and that, under article 61 IA, this obligation is only a duty of general conduct, substantially fulfilled by the delivery of the asset. It is insufficient in itself to classify the lessor’s claim as a claim against the insolvency estate. The obligation to transfer the ownership of the asset to the lessee is also insufficient when the lessee exercises the purchase option agreed, because this sale and purchase is not an act of signing the lease agreement, but a new legal relationship requiring new statements of intent if the lessee decides to exercise it.

The Supreme Court thus concluded that any installments accruing after the declaration of the insolvency are not claims against the insolvency estate, but insolvency claims.

One new aspect is that the decision interpreted the mention of leasing agreements in article 61.2 IA by Act 38/2011,3 and concluded that it did not result in classifying these agreements as continuing performance agreements with subsisting obligations attributable to both parties, but that this precept will only be applicable when, from the analysis of the specific leasing agreement, obligations arise that are pending fulfillment, also for the lessor of the leasing after the declaration of insolvency.