The preventive renunciation of the start-up allowance is not possible

The Court of Cassation, with the Decision n. 15373/18 clarifies the possibility of the renunciation of the start-up allowance in advance.

The lessor of premises for non-residential use contested the injunction issued against him in favor of the commercial activity as a start-up allowance.

On the basis of the opposition the lessor deduced the groundlessness of the injunction because of existence of a contractual clause with which the parties have excluded the payment of the start-up allowance since this was taken into account in determining of the rental charges.

The Court of the first instance upheld the opposition following the Decision n. 14611/2005 of the Supreme Court which states: “the provision of a rental charge lower than the one originally agreed is admissible in the presence of a renunciation of the lessee of the rights deriving from the lease regarding the preemption, redemption and allowances”.

The Court of Appeal confermed the first instance decision.

The lessee challenged the Decision to the Court of Cassation stating the violation of Article 79 L. n. 392/78.

The Court of Cassation declared reasonable the ground of the claim observing that the prevailing jurisprudence of legitimacy interprets the art. 79 L. n. 392/78 as a rule aimed to protect certain rights of the lessee, specifically identified, from any possibility of circumvention of that rights.

The Court of Cassation, with the Decision n. 15373/18 states that the rights claimed by the lessee only once arose are available and may be renounced, with or without payment, staying still applicable the precaution of the art. 79 L. n. 392/78 which is aimed to prevent the rights of the lessee from being the object of preliminary circumvention.

Therefore, it is advised to avoid the introduction into lease agreements of contractual clauses opposite to the above mentioned orientation.

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