Explain who is responsible for repairing office mosquito screens, the landlord or the tenant, and which rule takes precedence when legal regulations and contractual agreements conflict. Discuss the relationship between law and contract, including the difference between discretionary and mandatory laws, and illustrate with specific examples how the principle of freedom of contract applies.
If the mosquito netting in an office is old and broken, who should fix it: the tenant or the landlord who leased the office? Under pre-Civil Code law, the landlord is obligated to fix it. However, when renting an office, the contract may stipulate that the tenant is responsible for fixing simple damages. When there is a discrepancy between the law and the contract, the question arises as to which should take precedence and whether there are any legal penalties.
Private law is the law that applies to property, family relationships, etc. between individuals, and the principle of freedom of contract is applied in this area of law. This means that the parties themselves can decide the specific contents of the contract. Therefore, if the parties enter into a contract that is contrary to the provisions of private law, the content of the contract will take precedence. A legal rule that allows the parties to freely determine the content of the contract even if it is stipulated by law is called ‘discretionary law’. Since private law is, in principle, a discretionary law, the provisions of the law are generally applied if the parties have not stipulated otherwise in the contract. This is the case with the landlord’s repair obligation clause above.
However, there are exceptions to this rule, such as fines and penalties, where the parties may be subject to legal penalties or the contract may be invalidated. First of all, there are cases where there are legal penalties for contracts that are not in accordance with the law, but the contract itself is still valid. These are known as “enforcement statutes”. A rule that prohibits real estate agents from selling their own real estate directly to customers is an enforcement rule. Therefore, if an agent and a customer enter into a sale contract in violation of this rule, the agent will be fined, but the contract itself will remain valid. In this case, the obligation to act in accordance with the contract is recognized, which means that the authorized broker is obliged to hand over the ownership of the property and the client is obliged to pay.
On the other hand, there are cases in which the obligation to pay is denied because not only is there a legal disadvantage when the content of the contract is not in accordance with the law, but the validity of the contract itself is not recognized. This is called “mandatory law”. In this case, the parties cannot demand that the other party make the payment. If you have already made a payment and handed over a property interest, you can demand its return because it constitutes an “unjust enrichment,” i.e., you have a “right to recover unjust enrichment. The law prohibiting doctors and non-physicians from partnering in a medical organization is mandatory. Therefore, a partnership agreement entered into by a doctor and a non-doctor is void. However, if you have already handed over funds for the partnership under the contract, you can demand the money back.
However, there are cases in which the right to recover ill-gotten gains is not recognized when the contract is invalidated by mandatory laws. If the payment was for immoral or anti-social behavior, such as counterfeiting money, the contract is not only void, but the right to return the money is also denied.
When the state intervenes in contracts between individuals, it does so to fulfill a legitimate legislative purpose, such as national security, social order, or public welfare. In this case, the “principle of proportionality” applies, which states that any restriction on freedom of contract must be as minimal as necessary. This is why the impact of the state on contracting parties varies.
The case of the repair of an office mosquito net is a good example of the relationship between law and contract. In the case of a broken mosquito net, consider whether it is legally valid for the tenant to repair it when the lease agreement contains a clause stating that “simple repairs are the responsibility of the tenant”. While minor issues like repairing mosquito nets are usually addressed by contract, you should also consider whether this clause places an undue burden on the tenant.
In fact, the law states that landlords are responsible for basic maintenance of the building, but we mentioned earlier that contracts can stipulate otherwise. In this case, the contract will prevail as long as it doesn’t contradict the basic intent of the law, i.e., it doesn’t unduly disadvantage the tenant.
In commercial leases, especially for offices, freedom of contract tends to be recognized more broadly in practice. This is because commercial leases are usually negotiated and compromised by both parties, and it is customary for the tenant to be responsible for minor repairs.
You should also consider the potential for legal disputes when such a clause is present. For example, if the tenant delays or neglects repairs, causing further damage, can the landlord sue the tenant for damages? Conversely, can the tenant take legal action against the landlord for disagreeing with the terms of the agreement? It all depends on the clarity, specificity, and fairness of the agreement.
As you can see, even a small example like repairing an office mosquito net can give you a good idea of how contracts and the law interact and what parties need to keep in mind. It is therefore advisable to seek legal advice when entering into a contract, and it is important to ensure that the contract is fair and clear to both parties.
