Rent Payment Obligation and Covid-19

In its ruling of 24 September 2021 (30 U 114/21), the Higher Regional Court of Hamm decided that, subject to special contractual provisions, official orders to close a business due to the Covid-19-pandemic do not lead to a reduction in rent pursuant to section 536 of the German Civil Code (BGB), nor do they constitute grounds for temporary nullity of the commercial lease agreement pursuant to section 134 of the German Civil Code (BGB). The main performance obligation of the landlord consists in the transfer of a rental object suitable for the business, i.e. in the provision of the use for this purpose by handover. In contrast, the landlord does not owe “the operation” or the “transfer of the operation”. In individual cases, however, the Covid-19-pandemic could might give a right to adjust the lease agreement in accordance with section 313 of the German Civil Code (BGB) in accordance with the principles on the disturbance of the basis of business (Störung der Geschäftsgrundlage).