(Lecture given by the lawyer. Tiscornia FM at the 24th meeting of the Coordination of Legal Confedilizia Piacenza Saturday, September 20, 2014).
– I – COMMERCIAL ASPECTS
The now well-known Polish sociologist Zygmunt Bauman of Jewish origin, author of the famous book “The liquid life” (and also in this month of “The future liquid”) claims, as noted:
“The world we live in has features increasingly ephemeral and uncertain. It ‘liquid. A society can be defined as liquid if the situations in which people act change faster that their ways of acting to consolidate into habits and procedures.
The liquid life, such as the liquid society, it is not able to retain always the same shape.
Driven by the anxiety of the deadline, the company liquid must modernize or perish.
And those who live should run with all his strength just to stay in the same position.
The stakes in this race against time is saved by ‘be excluded. “
In the ‘post-modern era that everything is done with great fluidity and speed, everything dissolves and rebuilds very quickly and then also how the retail sales suffer unless anticipate this “liquidity”.
And therefore the transitory is a requirement that is becoming increasingly common in the rental business with the CDs. Stores in time or temporary shops, in English “pop-up shop” or “pop-up store” (pop-up means “arise suddenly. “In computer language are those annoying commercials of a few seconds that emerge suddenly on video and then immediately disappear).
The temporary shop operating in areas with a high density commercial for such a short period, for example, to launch a brand or to present seasonal collections or to test the public acceptance of a product line.
They are spreading to exhibitions, trade fairs, local holidays, showrooms for fashion shows, warehouse sales until the ‘while supplies last, clearance of goods of a failure.
He is experiencing in recent months a real boom in demand and because of the Expo in Milan (together with the ‘other growing phenomenon of the lease of furnished office, also complete secretarial services: that really should be more accurately described as legally service contract).
The opening of a temporary shop began in 2003 in England and then quickly establish itself worldwide. Often these stores may remain open even just a few days or a few weeks, maybe collaterally organizing an event such as the presentation of fashion collections or for sales or liquidations. Or as showcase for launching new products, collections or organize related events in exhibitions and fairs in progress. The temporary shop are a disruptive new marketing phenomenon since their persuasive force greatly influences customers.
In fact, the limited duration of the sale causes them to hurry so as not to miss the opportunity. The atmosphere of exceptional event arouses curiosity and encourages people to enter the store.
Also the temporary efficacy has psychological and subliminal fors ‘a little’ devious on the consumer who is instinctively more inclined given the short time of the sale not to miss an opportunity that will not happen again.
A sales philosophy that is aimed at inducing the consumer to purchase an anxiety not to lose the product: if until now was that the risk of not finding the proper measure of shoes tomorrow will be to no longer even find the shop!
They are highly sophisticated techniques to draw attention (such as the countdown to the closure of the store) and which frustrate the consumer anxiety to induce him to hasten the purchase.
In this sense the temporary shops are opened in strategic locations in the city, in the streets of most traffic or pedestrian areas of downtown with the most number of visitors.
The goal is to create an event and to bet on the curiosity generated by the limited time to push for a faster and less meditated purchase of new products since the anxiety of not being able to count on the physical space, to have a product preview only and to be part of an event instinctively hastens purchasing decisions.
The temporary shop can take very different commercial forms: as the showroom, where there is sale but only the presentation of a product or service. As the nomad store, traveling stores that stop temporarily on a tour through several cities. And finally the corner to temporary ‘internal department stores.
The formalities required for the opening of a temporary shop, however, continue to remain the same as the permanent store: wake, opening a VAT, Register of Companies, registration INPS traders.
It ‘was the first Region of Friuli Venezia Giulia to sign in early 2014 a memorandum of understanding (between Confcommercio and President of Confedilizia Udine lawyer. Paul Scalettaris) to boost the rental market for commercial, urging a modification of the Law 392/78. In fact the opposite tendency to expel from the market the small independent shops with loss of jobs, economic damage to the owner of the property and impoverishment of the urban contexts, the two sides have set up an information desk temporary shop stating that “pending overcome the rigidities of the Law 392/78, which is to brake ‘placing on the market of commercial properties, renting transient is a viable alternative option that avoids the property to take on long-term contracts at a time of declining rents and tax burdens .
This solution meets the needs of drivers, especially young people who have the interest to have spaces for a reduced time for testing the performance of new business initiatives “
– II – THE LEGAL ASPECTS
As known the art. 27 Law 392/78 to her c. 5th states that “the lease may be concluded for a shorter period if the activity exercised or practiced in ‘property has, by its nature, transitory character” shorter than the duration of the first ordinary absolute minimum contract period , established by paragraph 1 for non-residential purposes (with rare exceptions) in 6 (or 9) years.
If the contract is agreed a shorter duration than absolute minimum of the law (or not exactly agreed upon) the same changes (is “hetero integrates”) automatically in the mandatory and any contractual provisions contrary is void (Art. 79 Law 392 1978 ), resulting in automatic adjustment of the same duration ex. art. 1339 cc.
The law thus allows the signing of leases “temporary” (as C. Sforza Fogliani and S. Jersey “The new code of leases” edition of The Tribune, p. 201, ed. 2012, called by Antonio Nucera in “Archives of the Leases in 2014 “p. 298) in front of the needs of the commercial economy which have a duration shorter ferrule (sometimes very short), as may happen for example for the sale of Christmas products.
Obviously it is to establish what is meant by the temporary nature and for that purpose it is essential that this characteristic is “expressly stated with specific reference to their reasons, so you can inspect the courts and that they are such as to justify the subtraction of the report to the ordinary regime, that is, they are objective reasons which exclude needs stability. “ (Cass. 18.4.96 n. 3663 in “Archives of leases 1996,” p. 737).
One of the parties (Squillaci) was defended by ‘Avv.to Scripelliti.
The rare case law has identified sometimes the concept of transiency (Cass. 08/20/1990 n. 8489 in “Archive Of Leases 1990,” p. 690), not so much in the type of activity but rather in the way posing as concretely the prevailing will of the parties and their overall behavior. Intentions – just momentary – conductor who sells products not seasonal but nevertheless – for his subjective reasons (to find expression and try on) intends or has to stay at the management of the property for a very limited period because, for example, limits to carry out tests of merchantability for some goods.
Another Law refers instead to the transitory nature of the prevailing professional and commercial breakthrough: Trib. Chieti 01/26/2006 n. 25 in the “Archives of the Leases in 2007” page. 315 and Cass. 08/11/87 n. 6896:
“It appears evident that the law makes said faculty to objective conditions (ie: related to the nature of the activity itself esercitanda) that palesino the functionality of shorter duration than that of law. In contrast to subjective conditions it is not included in that derogation. This appears moreover to be fully logical, since they may well be satisfied with just the right pactional / or legal requirements laid down in the penultimate and last paragraph of ‘art. 27 L. 392/78.
Finally, for the last Cass. 07/08/2010 n. 16117 there is activity already by their nature only temporary but also others where transience is determined by several factors, such as the sale of assets in bankruptcy:
“If the lease of property for the exercise of one of the activities is taken out for a shorter duration than legal, the contract may be deemed to satisfy the legal model” rental housing is not transitory, “and then subtracted from the penalty of nullity referred to ‘ art. 79 of the same law provided that the transitory is expressly stated with specific reference to their reasons, so you can inspect the courts and so far it appears, in response to it, that the reasons given are such as to justify subtraction of the report to the ordinary regime, that is, they are objective reasons which exclude needs stability: v. Cass. 3663/1996.
It can therefore be concluded that – contrary to the wording of the provision of pure law “nature of the business” – the temporary nature of the lease may instead be recognized even if it is not the nature of the activity to be transitory but its subjective modes of conduct (always that it is clearly in the contract).
In case of dispute, the judge will then assess whether the conditions subjective or objective to derogate from the law of life.
In fact, the risk of temporary contracts is the aforementioned “eterointegrazione the legal clause” former. art. 1339 cc. namely the automatic adjustment of the minimum law, also linked to the original contractual statements conductor about his personal reasons transience that prove unfounded then (without the lessor’s opposition).
Or there is the case where the parties declare simulate and transitional needs not real to begin a contract to test one or two years at a subsidized rent starting with the understanding then the expiration of the first of such contracts with the next one duration of law and market rent, but the risk of eterointegrazione quoted is very high.
Besides the need of absolute clarity and justifiability of transitory nature in question (contracts temporane the lease are not by their nature renewable because they face a great need and not continuous in time), a feature of the temporary location is the lack of entitlement to the tenant for loss of goodwill, excluding art. 35 of Law 392/1978, (in a short time not creating goodwill) and the right of first refusal if the landlord intends to sell the property to third parties (art. 41 L. 392/78 which recalls art. 35 L. 392 / 78), leased the property to third parties when the contract or after the release of the property (arts. 40 and 41 l. 392/78).
(Transience is not to be confused with the seasonality, such as shops in seaside resorts for which we talk instead of seasonal rentals).
Adv. FRANCESCO MAXIMUM TISCORNIA