Questão jurídica principal
Whether the defendant, as a co-tenant who never occupied the premises, was liable for occupation indemnity after lease termination.
Decisão extraída
Yes. As a co-tenant, the defendant was bound by the lease and the obligation to return the premises; the other co-tenant's continued occupation made the defendant liable as that co-tenant's auxiliary under Art. 101 CO.
Fundamentação extraída
The cantonal court wrongly treated the relationship as a mere cumulative debt assumption and misapplied the burden of proof. The contract wording and signature order showed no basis to exclude co-tenancy under the principle of trust. After expiry of the lease, restitution was an indivisible obligation. Although the defendant did not personally remain in the premises, the co-tenant who stayed on was acting with his tacit consent and thus qualified as his auxiliary, so the landlord could claim occupation indemnity from him.