Patrimonial responsibility of the State
Publicado el 26/2/2021
The patrimonial responsibility of the Administration derived from the pandemic, be it state, regional and / or local, can be pursued for different causes and also by different means. We will refer in a very summarized and practical way to those that our Firm is developing with all its clients, also international, for companies that are viable but in sectors that, however, are not: hospitality, catering, tourism, culture, snow, cattle raising… To consider the appropriate procedure, one must start from a premise that for our Firm is essential; Financing through ICO COVID allows the business to be maintained but eventually it will have to be returned with the performance of the business itself, which, already lower due to the pandemic, will have to generate resources to support the payments of that financing, which represents an unnecessary risk since many occasions it will not be possible to meet ordinary expenses and debts incurred. It is at this point where the entrepreneur is offered to study the financial situation in which he is and in which he will find himself in the coming months, as a result of the pandemic due to the financing obtained and the ERTE approved, to restructure and / or refinance it, adjusting the material and human resources to the future reality, so that the company is properly dimensioned to meet its real obligations. The possibility of restarting a new activity without risk of business succession will also be assessed. Sometimes we will propose the request for bankruptcy with the sole purpose of agreeing with all of them with a reduction between 30 and 50% and a wait in payment of up to ten years, with which the debt contracted could be perfectly assumed.
Y en caso de tener que acudir a la extinción de la empresa se procurará la exoneración del pasivo insatisfecho (segunda oportunidad) de manera que el empresario pueda comenzar su actividad sin tener que soportar deudas anteriores.
Además de ello, el Despacho puede estudiar la adaptación de la renta del local de negocio que explote el empresario solicitando su ajuste al cierre temporal y a las aperturas con limitación de aforos de manera que la renta se ajuste con exactitud a todo ello y, en su caso, a la realidad del mercado actual. De haberse iniciado por la propiedad el desahucio por falta de pago de la renta se propondrá la solicitud de medidas cautelares de suspensión del mismo hasta que se decida el litigio para rebajar la renta que entonces deberá interponerse, como ya se han pronunciado alguno Juzgados.
Respecto del pago de las rentas por los locales arrendados el Despacho acude a la aplicación de la cláusula rebus sic stantibus ante los Juzgados y Tribunales puesto que no hay referencia alguna sobre ello en la normativa vigente siendo, por tanto, interpretación judicial, como ya ha tenido ocasión de pronunciarse el Tribunal Supremo el 31 de octubre de 1963 y actualmente tribunales menores como ocasión de la pandemia.
Los preceptos que respaldan esta actuación son todos del Código Civil:
1213: “Si las circunstancias que sirvieron de base al contrato hubieren cambiado de forma extraordinaria e imprevisible durante su ejecución de manera que ésta se haya hecho excesivamente onerosa para una de las partes o se haya frustrado el fin del contrato, el contratante al que, atendidas las circunstancias del caso y especialmente la distribución contractual o legal de riesgos, no le sea razonablemente exigible que permanezca sujeto al contrato, podrá pretender su revisión, y si ésta no es posible o no puede imponerse a una de las partes, podrá aquél pedir su resolución. La pretensión de resolución sólo podrá ser estimada cuando no quepa obtener de la propuesta o propuestas de revisión ofrecidas por cada una de las partes una solución que restaure la reciprocidad de intereses del contrato”.
1182: “Quedará extinguida la obligación que consista en entregar una cosa determina cuando ésta se perdiere o destruyere sin culpa del deudor y antes de haberse constituido en mora”.
1184: “También quedará liberado el deudor en las obligaciones de hacer cuando la prestación resultare legal o físicamente imposible”.
Which may collide with article 1105: "Outside of the cases expressly mentioned in the Law, and those that are so declared by the obligation, no one will be liable for those events that could not have been foreseen, or that, foreseen, were unavoidable"; that is, the cases of fortuitous event or force majeure But understanding for these effects alone that the coronavirus epidemic as an unforeseen, unforeseen and unavoidable event, the Supreme Court in a judgment of March 14, 2001 (curiously the same day and month as the declaration of the state of alarm) declares that "the appreciation or not of fortuitous event or force majeure comes to be redirected to the determination of what standard of diligence was required of the concrete obligated in each case ... possibly as a consequence of all the above, it has declared that the so-called exorbitant benefit cannot be required to prevent damage or overcoming difficulties that would have required absolutely disproportionate sacrifices ”. In this way, the Firm will pursue to suspend the payment of the rent in application of the rebus sic stantibus clause due to the closure or reduction of the activity given that there has been a substantial and extraordinary alteration of the conditions of the contract; in particular when unforeseeable supervening circumstances occur that cause an exorbitant disproportion out of any calculation between the benefits of each of the parties, since the business does not obtain performance and it is about allowing the situation to be overcome and the contract to fulfill the duration that was granted. And, if there is an insurance policy with coverage for loss of income or loss of profits, they would propose to claim the amount contracted from the insured if it has not been singularly excluded and signed, as a court has already had occasion to pronounce.
Having said all of the above, it will be appropriate to mean that on March 14, 2021, the limitation period of the claim to be filed should be interrupted since it would be one year from the first declaration of the state of alarm and the first confinement but not, as we understand it, to formally claim before the Courts because we advise waiting to know the result that other claims already in progress have and thus act on insurance. Action that, as at the beginning, we indicated we would seek in two different ways: a) violation of the fundamental right to work and equality, among others; and b) claim for damage caused by the actions of the Administration. And this because the damage is effective, economically assessable and individualized. In the first case, the right would be defended, as the health workers rightly did with respect to the lack of sanitary materials to carry out their work, without the need to file a prior claim and with preferential and rapid processing. And in the second, with defense of the unlawful act of the Administration justifying the damage and the causal relationship with that act, demanding the payment of the amount that is expertly determined and that our Firm focuses on the loss of complete billing in the confinement and partial due to capacity limitations.
To do this, we would be based on the following precepts:
- Article 106.2 of the Spanish Constitution: “Individuals, under the terms established by law, shall have the right to be compensated for any injury they suffer to any of their property and rights, except in cases of force majeure, provided that the injury is a consequence of the operation of public services ”.
- Article 3.2 of Organic Law 4/1981, which regulates states of alarm, exception and siege: “those who suffer, directly, or in their person, rights or property, damages or losses for acts that are not attributable to them They will have the right to be compensated in accordance with the provisions of the law ”.
It is known to all that the pandemic was unpredictable and that the Administration will surely defend against this claim that it is a case of force majeure and that the measures taken are administrative activities of general interest and, therefore, within the normal operation of the Administration (How can the Administration be required to act when it is not imposed by law?). In this way, the origin of the claims for patrimonial liability that we have exposed could be doubted. But this is not the case, since one can speak of unlawfulness, which is what makes it possible to demand patrimonial responsibility when no legal or other rule has been violated. Unlawfulness, which is then defined as that which produces damage that the individual does not have the legal duty to bear in accordance with the law; therefore, what is unlawful does not appear to be an administrative action contrary to the law, but rather one that causes damage. But even more, the responsibility to demand is not so much the derivative of the pandemic but of the administrative measures taken as a result of it that have caused damage, especially, to certain sectors and not always in all territories, much less all the balanced activity or percentages, having shown in sectors that have not had the same limitations the least economic impact and with it a different distribution of public charges that violates the principle of equality.