The Leasing Contract

1. The leasing contract

International Trade analysts have highlighted the fact that the lease is an expression of modern techniques of contract in this field. Strongly on this type of contract is explained more by pragmatism authors and their effectiveness.

Leasing appeared first in the United States, after that, gradually breaking into other countries, especially in Europe.

In the U.S., leasing has been governed by the United States Uniform Consumer Credit Code and the Uniform Commercial Code. In Great Britain, France and Belgium have been issued regulations which define the contractual relationships based on leasing and specify the operations that it includes.

Leasing has been determined in the appearance of objective. Thus, in the U.S., UK and other countries were met difficulties in financing the business as a result of the rigidity of existing forms and processes. Businessmen felt the need to supply their commercial companies with modern equipment considering that the equipment in use was very old especially because of the moral use. The formula was the purchase of goods from the seller in order to rent them to those customers who needed them appeared as an efficient rescue.

Leasing has been defined as a legal operation by which a person buys a asset and rents it to another person.

The object of the lease is the temporary rental of property investment, of real estate assets and of services. Most often are rented cars and industrial machines.

Leasing can be defined from two perspectives, namely the economic and legal perspectives. The analysis of the concept from the legal point of view is the equalization of the term (leasing) with the term contract - which allows a person to use an asset without paying right away the value of it.

Order No. 51/28 August 1997, republished in 2000, defines leasing as a commercial operation in which a part called the lessor / financier, forwards for a determined period the right to use an asset, which he owns, to the other party, called lesse/user at the request of the latter, for a periodic payment, called the lease, and at end of the leasing period, the lessor/financier undertakes to respect the right of the user's option to buy the property, to extend the lease or to terminate the relationship contract.

Terminology

The word "lease" is part of the English vocabulary, derived from the noun "lease", meaning the "rental time”. It is used as a compound word with the meaning “on lease” or as a "concession" (long lease). In French commercial literature, the Anglo-Saxon institution is known as Credit - Bail (location on credit). It appeared initially in the form of protecting the trade fund or the investment on the expiry of the contract or of location.

In the leasing contract are involved several parties, namely:

- buyer - the person who bought the asset for rent;

- seller - the person who sells the asset and may even be the best producer;

- client (costumer) - the person who needs and therefore requires a car or equipment Through this contract, the buyer obtains important benefits, the seller has an assured market for its products and the customer has the option to procure machinery and equipment without too much investment. Moreover, the client obtains the reduction of production costs and credit payments. From the above it follows that we can define the lease as the operation by which a legal person or entity (a specialized company) buys a property (usually machinery and equipment) in order to rent it to another person (a company which uses the mentioned good). Professor R. Tudor Popescu observes in this operation, “the locator has the business initiative, the seller allows it, the creditor facilitates it and all together, act in their own interest, while acting in behalf of others”. In turn, Professor Ion Macovei details how the operation of leasing "has advantages for all parties involved."

2. The legal nature of the lease

As we have seen, the leasing is a form of term financing, an operation of a credit bail, which is characterized by the fact that the contract refers to equipment that will be used only for professional purpose. The assets are bought by the lessor only for renting them. The period of rental must match the duration of the economic use of those machines or equipment. The lease rates are fixed in order to allow the redemption value of the assets. The user has the discretion to choose to purchase the property at a price to match its residual value.

The leasing is an operation that includes:

- a contract of sale;

- a contract for rental;

- a contract of mandate;

- an advance contract concerning the promise of sale that the buyer makes, which is worth the sale from the time in which are materialized all the essential elements of the sale.

The leasing may also include the bilateral promise for rental of the financer and user preexistent the rental contract, which will have value only when all the elements of the rental contract will be materialized. At the same time, it includes a stipulation for another, in which the user can act on consumer goods warranty.

So, the rental contract in the leasing operation is consensual and intuitu personae. The financer’s role is to finance the deal, not having any influence on the intercession of it, which allows him to terminate the contract, if circumstances require it.

Meanwhile, the leasing has the features characteristic of a contract of adhesion, because at the closure of it the user is not able to make any changes to the clauses stipulated.