In the present article we analyze the possible unapproved assignment of the position of the lessee of a business premises on behalf of another lessee, who is subrogated in the foregoing, failing to comply in this way with what is established in Article 114.5 of the Urban Lease Act of 1964 (at present, Article 27.2.c of the current Urban Lease Act).

The legal action filed by the lessor of the commercial premises, in which the resolution of the leasing contract is requested as a result of an unapproved assignment of the lessees’ position, is established on the basis that due to the death of one of the three joint lessees, the other two lessees have automatically assumed the position of the deceased lessee.

In view of the foregoing, the defendant lessees argued that when they adopted the substitution of the position of their father, the initial lessee of the premises, they sent the lessor a notification informing him not of a tacit but an express pact of joint and severally liability between the lessees “as they were and have been a subjective unit. This should have been understood, when the three appeared at the same time, effecting the same manifestations, from which a common, unitary, indivisible interest can be inferred and clearly one which was joint and severally”.

The Judge of the First Instance rejected the legal action arguing that the joint and severally liability nature of the joint entity between the lessees is presupposed and that the part which corresponded to the deceased lessee proceeds to form a part of the exploitation of the other lessees. The desire of the interested parties to create a generating obligation from a joint and severally relation is thereby presupposed.

Afterwards, in a Second Instance, the Provincial Court of Seville rejected the appeal filed by the lessor party, as it considered that the jurisprudence of the Supreme Court should be applied, which allows the existence of joint and severally obligations that are not expressly declared, but from which such a nature can be deduced, as it is determined by the juridical community of common goals and interests between the prestations of the different debtors, as it occurs in the present case. In addition, the ruling of the appeal established that the presence of the three lessees was not necessary in order to understand the leasing agreement as subsistent, as is the case when the lessees are husband and wife and one of them dies. In this case, the fact that the other spouse continues with the leasing is not questioned.

In view of the Provincial Court’s Sentence to reject the legal action, the lessor filed a Cassation Appeal based on the provisions of Articles 1.137 and 1.138 of the Civil Code, that is, that the joint nature is the general rule, while the joint and severally nature is the special rule and must be specifically agreed between the parties.

In the light of the foregoing, the Supreme Court established that even though for these suppositions the oldest jurisprudence requires a joint and severally express agreement , this position has been modified by more recent jurisprudence which establishes that even though the joint and severally nature is not presupposed, as is stated in Article 1137 of the Civil Code, “nor does it prevent the tacit joint and severally nature from being applied, when among the obligated parties, there is a juridical community of goals and purposes and thus a connection between everyone involved is evidenced”.

The Supreme Court thus ratified the Sentence of the Court of the First Instance and the one of the Provincial Court, granting total validity to the leasing agreement and confirming the afore-cited tacit joint and severally nature between the lessees as a result of the juridical community or connection of common goals and purposes of said lessees.