ROL C-6228-2016

16th Civil Court of Santiago

SEEN:
Mr. Gerardo Scheffelt Clarr appears at page 1,
lawyer, judicial agent, in representation of
ESTRELLA LEASING LIMITED, R.U.T
77.919.930-4 company of the nature of its name,
represented by Mr. Alexander Peter Köhler Achenbach,
mechanical engineer, and Mr. José Antonio Camiruaga
Garretón, commercial engineer, all with an address in
Gladys Marín Millie Avenue (formerly Los Pajaritos) No. 5,830
Central Station Commune, Santiago, and demand in
termination trial of lease contract, collection
of rents and restitution of leased property, to the
LIMITED TRANSPORT COMPANY RAG
R.U.T. 76.091.905-5, represented by Mrs. ANYELA
VALERIA ARAYA MUÑOZ, businesswoman, both with
address at Calle Andrés Bello No. 969, El district
Carmen, requesting that the contract be declared terminated.
of leasing that details, that the defendant be sentenced to the
sued for the return of the rented vehicle that
indicates, and to the payment of the amounts listed, plus interest
and costs.
On page 74, the notification of the lawsuit is recorded.
tenant, dated April 28, 2016.
At page 77, the summons decreed in is carried out.
cars, with the assistance of the representative of the party
plaintiff and in default of the defendant, it was had
for not answering the lawsuit in defiance of the
defendant, a call for conciliation was made which was not
produced by the indicated rebellion, and the case was received to
test yielding the documentary of the plaintiff, which
reiterates the one that is added to the records. Finally,
The parties are cited to hear the verdict.

CONSIDERING
FIRST: That, replicating the exposition of the ruling,
Mr. Gerardo Scheffelt Clarr, lawyer, appears on page 1,
judicial representative, on behalf of
ESTRELLA LEASING LIMITED, R.U.T
77.919.930-4 company of the nature of its name,
represented by Mr. Alexander Peter Köhler Achenbach,
mechanical engineer, and Mr. José Antonio Camiruaga
Garretón, commercial engineer, all residing at
Gladys Marín Millie Avenue (formerly Los Pajaritos) No. 5,830
Central Station Commune, Santiago, and demand in
termination trial of lease agreement, collection
of rents and restitution of leased property, to the
RAG LIMITED TRANSPORT COMPANY
R.U.T. 76.091.905-5, represented by Mrs. ANYELA
VALERIA ARAYA MUÑOZ, businesswoman, both with
address at Calle Andrés Bello No. 969, El commune
Carmen, requesting that the contract be declared terminated.
of leasing that details, that the defendant is condemned to the
demand for the restitution of the leased vehicle that
indicate, and to the payment of the amounts that it enumerates, plus interest
and costs.
He bases his action on the lease contract with
purchase option or leasing entered into by deed
public document dated March 7, 2014, granted in the
Public Notary of Chillán of Mr. Joaquín Tejos
Henríquez, under Repertoire No. 766/2014, between the
THE STAR LEASING LIMITED and
the defendant RAG TRANSPORT SOCIETY
LIMITED, by virtue of which the plaintiff delivered
rental to the defendant the following vehicle
motorized property: a truck brand
Man, model 28350 BLS, year of manufacture 2009, color
white, engine No. 50520292372033, chassis No.
WMAHV4ZZ89W123748, registered in the Registry
National Motor Vehicles with No. BZFF.85-
1. In the referred lease contract with an option for
purchase, it was stipulated that the duration of the contract would be
39 months, starting from March 6, 2014, and that the rent
the lease would be paid as follows: a) With
$6,000,000 cash at the time of signing the
contract; and b) with 36 monthly, equal and
successive amounts of $1,202,441 each, VAT included, for
overdue periods, starting from May 5, 2014.
Likewise, in the fourth clause of said instrument
it would consist of the delivery of the rented vehicle to the
tenant with date March 7, 2014.
Add that in the ninth clause of the contract of
lease the parties agreed that the tenant
I would incur a breach if I do not pay on time.
any of the monthly lease rents
and/or the corresponding VAT or any use of money for
that is obligated by the contract, in which case the
the lessor could make it enforceable immediately and without further ado
process the payment of the pending rents until the end
of the contract, considering all the obligations
due and past due and in default to the tenant,
without prejudice to the obligation of this party to restore
immediately to the lessor the leased asset. Likewise,
the parties would have agreed in the twelfth clause
of the contract that any payment made late would give
Right to THE STAR LEASING LIMITED for
charge the tenant the maximum interest allowed by law
allows stipulating for money credit operations not
re-adjustable in national currency, on the total of the
unpaid obligation until the date of its effective payment.
The claimant indicates that the tenant has not
paid to THE STAR LEASING LIMITED the
rents agreed with a due date from March 5 of
2015 for what, according to the agreement in the clause
ninth of the lease agreement, your represented party
finds the authority to make the total enforceable of the
indebted, amounting to the sum of $31,263,466 more
agreed interests and costs. The plaintiff submits to the
the following requests: that it be declared terminated
the leasing rental contract entered into between
ESTRELLA LEASING LIMITED and the defendant
RAG TRANSPORTATION SOCIETY LIMITED
regarding the vehicle that is the subject of the lawsuit; that it
order the defendant to return the vehicle
rented that indicates immediately or within
third day after the notification of the sentence that orders it;
it is declared that the defendant company must pay to the
actor, within the deadline of the third day or the one indicated by the
court, the amount of $31,263,466, including VAT, plus
agreed interests; that as a consequence of the term of
lease agreement, order the cancellation of the
registration of the title of mere possession of the vehicle
leased in the name of the defendant; and that the society
the defendant must pay the costs of the case. Alternatively
from all the previously mentioned requests, it is requested to declare
that the defendant is condemned to the benefits that the
court estimates of law.
The plaintiff bases her claim on the provisions
in articles 1489, 1545 and following, 1567, 1945 and
1950 of the Civil Code, in articles 607 and following
of the Code of Civil Procedure and in the contract of
lease that it invokes.
SECOND: That the party was legally notified
the defendant did not appear in court, which was processed
in its rebellion. Consequently, it is reasonable to estimate that it has
produced a fictitious response from the defendant, which
denies all the facts alleged by the plaintiff.
THIRD: That, as a consequence of the defiance of the
lawsuit and the consequent fictitious response to it
it denies all the facts of the lawsuit, not
It is possible to identify undisputed facts in this.
litigation.
FOURTH: That there have been controversial facts in this
I judge the following:
a) Existence and stipulations of the contract of
lease executed between the parties; and
b) Payment by the defendant of the rental income
charged by the actor.
FIFTH: That the contract regarding which corresponds
to speak in this trial corresponds to a leasing. From
In this way, although the leasing contract is not found
defined in the legal system constitutes a
atypical contract and, for this reason, the doctrine and the
jurisprudence has assimilated it to a lease of
goods with an option to buy. However, it is no less
true that, given its purposes, it is a figure that has for
object of providing a financial service, through the
the tenant obtains financing for the
acquisition of machinery, vehicles or other goods
furniture, as in the case of cars. From this
from a perspective, financial leasing is an obligation of
money, to which the regulations apply and
principles that the legal system provides for that
category of obligations. Consequently, in addition to the
relevant regulations that, in general terms, govern
the obligations and that are contained in the
Book Four of the Civil Code is also applicable.
specifically Title XXVI of the Contract of
leasing of the same book of the Code of Bello, thus
like Law 18.010 which establishes standards for the
credit operations and other monetary obligations.
SIXTH: That, to substantiate her claims, the plaintiff,
accompanied in cars, legally, without objection from the
on the contrary, the following instruments:
a) Authorized copy of the public deed of contract of
leasing rental in pesos entered into by
public deed dated March 7, 2014, granted in
the Public Notary of Chillán of Mr. Joaquín Tejos
Henríquez, under Repertoire No. 766/2014, among the
the claimant THE STAR LEASING LIMITED and
the defendant TRANSPORTS RAG SOCIETY
LIMITED, the one that rolls on page 32.
b) Delivery report of the leased property between the claimant
THE STAR LEASING LIMITED and the
RAG TRANSPORTATION SOCIETY
LIMITED date March 7, 2014, which rolls to
sheets 11
c) Certificate and registration and current annotations of the
vehicle P.P.U. BZFF.85-1 dated March 8, 2016
issued by the National Vehicle Registry
Motorized, the one that rolls on page 21.
SEVENTH: That the defendant did not provide evidence for
find oneself rebellious.
EIGHT: That article 1700 of the Civil Code regulates
the evidential value of public instruments
arranging that regarding the grantors these
they constitute full proof regarding the fact of having
granted, its date and the statements that they
they contain. Consequently, with the merit of the contract
lease agreement with an option to purchase or leasing
celebrated by public deed dated March 7
from 2014, the following will be considered accredited
circumstances and stipulations: a) that between the parties there
celebrated a leasing or rental contract with an option
of purchase regarding the specified asset in the exposition
from this sentence; b) that said contract was concluded on the 7th of
March 2014, establishing in its second clause a
term of validity of the contract for 39 months starting from the 6
March of the year 2014; c) that at the time of the
The celebration of the contract includes the payment by the
lessor of the sum of $6,000,000.- in cash at that
same act, in addition to 36 equal monthly installments and
successive payments of $1,202,441 each, for overdue periods,
Every 5th day of each month starting from May 5th
2014; d) That in that same act the leased property was
materially delivered to the lessee, subscribing
delivery certificate in accordance with the provisions of the clauses
fourth and fifth; e) that was agreed upon in clause nine of the
contract that in case of default by the tenant
for not paying on time any of the rents
of lease and/or the corresponding VAT or any
another sum of money that he is obligated to under the contract. In
in such an event, the lessor could demand immediately and
without further ado the payment of all pending rents
until the end of the contract, in accordance with the
established in article 1945 of the Civil Code,
considering all due and term obligations
defeated and in default to the tenant, without prejudice to the
obligation to immediately return to the
lessor the leased property; f) That in the clause
the tenth clause of the contract stipulated that the contract will end
once the 39-month period for which it is
the contract is agreed upon, if the conditions have been met
established in the second clause, the tenant will have
an irrevocable purchase option, paying as the price
from the sale the residual value that the parties give it
assigned to the leased property and which is $1,202,441 VAT
included, in addition to the corresponding taxes on the
transfer of the leased property.
NINTH: That, corresponding to the defendant, the burden
procedure for the payment of the collected rent, he did not do it, and
according to the provisions of articles 1545, 1546 and
1698 of the Civil Code, it shall be deemed that these are
they have been overdue from May 2015 to May 2016,
both included, for a total of $15,631,733, plus all
those accrued up to the date of this judgment, and
all that are accrued until the effective delivery of the
rented property, rents that must be paid according to
the fixed value of $1,202,441.
 TENTH: That, consequently, provision will be made to give
by the termination of the lease agreement, entered into
between the parties, regarding the individual truck in the
first considering, for non-payment of the agreed rents,
the defendant must return said property within
third day counted from the notification of the present
sentence.
ELEVENTH: That the collection of the
agreed and pending lease payments.
In this regard, it should be remembered that the contract whose
the termination requested is not a simple contract of
leasing, but rather one of leasing or leasing
with an option to purchase in which the goal of the installments
what is paid is also a potential payment of the price of the
purchase and sale in the event that the option is exercised
purchase and sale at the end of the contract, a situation that is of
ordinary occurrence. In that scenario, it must be considered
that the atypical contract being analyzed here must be
considered as one of bilateral nature, onerous, and
commutative, in accordance with the provisions set forth in the
articles 1439 to 1441 of the Civil Code. Consequently,
even when it is not expressly stated, it can only be understood
that the payment of all lease rents that
the plaintiff intends in her complaint does not correspond
simply to the payment of the rents for the entire period
in the terms of article 1945 of the Civil Code. By the
on the contrary, in this case one would be facing a true
penalty clause, which is why it is necessary to adhere to the
Regulation of Title XI of Book Four of the Code
Civil. Thus, regarding the agreed penalty clause
by the parties in clause nine -the one in the contract
it is simply identified as payment of rents- and having
in view of the provisions of articles 1535 and following
from the Civil Code, it is necessary to consider that, from its text alone, it
obtains that this constitutes an advance assessment of
the damages that would arise for the lessor from the
early termination of the contract due to non-compliance
from the tenant and, as a result, being deprived of
perceive the agreed future rents for the duration
original of the contract, which implies that considering the
specified time for the end of the contract, that is,
until the month of April 2018, for which the fee
corresponding to the month of April 2018, corresponds to the
purchase option, which naturally will not be able to
in this case, it means estimating this clause
as provided by article 1544 of the Civil Code,
as a huge penalty clause, it will be moderated
according to the provisions in the final paragraph of this regulation in
the unique and total sum of $1,202,441.
TWELFTH: That the ordered sums to be paid must
it will be with the maximum legal interest, for operations
readjustable, from the date of default until its payment
effective, as stipulated by the parties in the clause
sixteenth of the lease agreement.
THIRTEENTH: That the evidence that has not been
explicitly valued in this ruling does not alter anything
resolved, but rather reinforces the facts that
they have been established.
FOURTEENTH: That costs shall not be imposed on the
challenged for not having been completely defeated.
FOR THESE CONSIDERATIONS, legal citations, and
seen, moreover, the provisions in articles 1439 to 1441,
1535 y siguientes, 1698, 1700 1915, 1916, 1917, 1918,
1919, 1942, 1945 of the Civil Code, and articles 144, 158,
160, 170, 346 No. 3, and 607 and following of the Code of
Civil Procedure, IT IS RESOLVED:
A. -The claim on page 1 is accepted,
how much, the lease contract is declared terminated
existing between the parties, regarding the leased property and
individualized in the first consideration, the
demanded to return said asset within the third day,
counted from the notification of this sentence.
B.-That the collection of the sum of $15,631,733 is granted.
in its equivalent in pesos on the day of actual payment, for
concept of overdue rents since May
from May 2015 to May 2016, plus all those accrued
up to the date of this sentence, and all those
that accrue until the effective restitution of the asset
leased.
C.-That, the collection for the concept of the clause is upheld.
penalty agreed upon in the ninth clause of the contract
lease, only for the unique and total sum of
$1,202,441, and the rest is rejected, in the manner
provided in the eleventh recitals.
D.-That the ordered sums to be paid must be done with
plus the maximum legal interest for readjustable operations,
from the date of default, until the actual payment.
That the registration of the title of is ordered to be canceled
my possession of the leased vehicle in the name of the
demanded in the National Vehicle Registry
Motorized. Officialize.
F.-Each party will pay its own costs.
REGISTER AND NOTIFY.
DICTATED BY XXXXXXXXXXXXXX, JUDGE
TITLE
AUTHORIZE DON XXXXXXXXXXXXX
MAINTAINING SECRETARY