Relevance of the Case
The law gives an interested party the possibility of summoning a third party in guarantee, against whom a separate guarantee or damages claim might be pursued. From the moment the claim is filed in court and the summoning in guarantee is communicated, the guarantor becomes a party in the civil process and must build its defense; otherwise it risks being held liable to fulfill what the plaintiff requested in the main claim.
In many cases, the party summoned in guarantee does not treat the situation brought to judgment with the same diligence that it would as the defendant, limiting itself perhaps only to defenses against the guarantee claim, which can lead to the guarantor being forced by the court to satisfy the plaintiff’s claims under the original lawsuit.
Summary of the Facts
In fact, the claimant company, by its statement of claim, asked for the lease contract concluded with the defendant company to be annulled for fraud, for the defendant to be made to pay the material damage suffered, and to pay interest for non-performance, under the contractual provisions.
In 2016 the claimant company, as lessee, entered into a lease contract with the defendant company, as lessor, for an “office/commercial space” located in the central area of Cluj-Napoca. After the contract’s conclusion, the claimant found that the designation of the rented space was not commercial but residential.
Given this, the claimant considered that it had been intentionally misled by the defendant, and requested annulment of the lease contract for fraud.
In reality, the contract between the defendant and claimant company was one of sublease, since the rented space was the property of the party summoned in guarantee, who had earlier entered into a lease contract for that same space with the defendant.
For this reason, the defendant summoned the property owner—who is also the initial lessor—in guarantee, justifying this by the fact that the defendant itself was misled about the legal designation of the property covered by the lease and sublease contracts.
The legal commercial designation of the property was relevant because the claimant company’s business could not be legally authorized by the City Hall of Cluj-Napoca and other competent authorities as long as, under law, the property was legally designated as residential.
Presentation and Support of the Case
Representation Before Cluj-Napoca Court
The Brisc Legal team, specializing in contractual civil liability litigation, assisted and represented the party summoned in guarantee in this matter, and argued to the court the reasons for which the summons in guarantee claim should be rejected as unfounded.
Thus, it was shown to the court that the sublease contract concluded with the claimant company is not enforceable against the owner summoned in guarantee, because that owner never gave written consent for the sublease, as required by the parties’ lease agreement, which specified that consent must be expressed in writing by concluding an addendum.
Under these conditions, the sublease of the space owned by the guarantor was conditioned exclusively on written agreement in the form of an addendum to the lease contract.
Regarding the conditions of contractual civil liability, it was argued that those conditions are not fulfilled in this case, demonstrating that the defendant, both at the time of concluding the lease contract with the owner summoned in guarantee and at the time of concluding the sublease with the claimant, represented that the rented space was not of a commercial purpose.
In support of this, it was argued that the defendant never expressed its consent to changing the property’s legal designation, even though its headquarters was in the same condominium as the residential space owned by the guarantor, and that the law at that time required obtaining neighbors’ approvals for changing a property’s designation.
It was shown that the defendant entered into lease not considering that the property was commercially designated, but motivated by competitive reasons—preventing rental of the property to other companies with the same activity.
Also, from the defendant’s conduct it was beyond doubt that it knew the legal status of the property at the time of subleasing to the claimant: it presented to the claimant a land-registry extract showing the land, not the building, and did not indicate that the space was commercial; moreover, it proposed the claimant to carry out its business there without legal forms.
Regarding the claimant’s claims, the Brisc Legal attorneys demonstrated that the claimant has its own fault in how it proceeded contractually, since it agreed to enter the contract without first performing reasonable diligence to ascertain the property’s legal status—such as requesting a land registry extract—prior to concluding the sublease.
Given that the claimant acted as a professional, its conduct is not excusable and cannot justify the contractual liability of the defendant or in any case of the owner summoned in guarantee.
Decision of the Cluj-Napoca Court
In accord with the arguments made by the Brisc Legal attorneys specializing in lease-derived litigation, the Cluj-Napoca Justice Court, taking over the considerations developed in defense by the party summoned in guarantee, held that the conduct of the defendant does not amount to fraud as a defect of consent, insofar as the property’s designated use could have been discovered by the claimant with reasonable diligence—e.g., by requesting a current land registry extract—prior to entering into the contract. The claimant in fact had an obligation to inform itself; that information was public and easily verifiable, yet such a land registry extract was requested only one year after concluding the contract.
Considering the arguments, the court rejected as unfounded the claim made by the claimant company, and did not hold the guarantor liable under contractual civil liability. Payment of material damage, interest, lease costs, or investments in the space that the claimant requested was denied.
Regarding the solution of the lower court, the claimant company filed an appeal, which was rejected as unfounded by the Cluj Tribunal; no new arguments were raised in the appeal stage.